United States District Court 

for the 

Southern District of Florida 

Todd Benjamin International, Ltd. 

and Todd Benjamin, individually 

and on behalf of others similarly 

situated, Plaintiffs, 

v. 

Grant Thornton International, Ltd., 

Grant Thornton Cayman Islands, 

Grant Thornton Ireland, Bolder 

Fund Services (USA), and Bolder 

Fund Services (Cayman), 

Defendants. 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Civil Action No. 20-21808-Civ-Scola 

Order on Motion to Dismiss Amended Complaint 

This matter is before the Court on the joint motion to dismiss the 

amended complaint filed by Defendants Grant Thornton Cayman Islands (“GT 

Cayman”), Grant Thornton Ireland (“GT Ireland”), Grant Thornton International 

Ltd. (“GTIL,” and with GT Cayman and GT Ireland, the “GT Defendants”), 

Bolder Fund Services (USA), LLC (“Bolder USA”), and Bolder Fund Services 

(Cayman), Ltd. (“Bolder Cayman,” with Bolder USA, the “Bolder Defendants,” 

and collectively with the GT Defendants, the “Defendants”). (Mot. Dismiss, ECF 

No. 58.) Plaintiffs Todd Benjamin International, Ltd. (“TBIL”) and Todd 

Benjamin (“Mr. Benjamin,” and collectively, the “Plaintiffs”) have responded in 

opposition. (Resp., ECF No. 68.) The Defendants have replied in support of 

their motion. (Reply, ECF No. 82.) Having reviewed the briefing, the record, and 

the relevant legal authority, the Court grants in part and denies in part the 

motion to dismiss. (ECF No. 58.) 

1. Background 

The Plaintiffs in this investment dispute represent a class of 400 

individuals and corporations located both domestically and abroad who 

invested in a now-defunct Cayman Islands-based hedge fund managed by a 

Florida corporation. (Am. Compl. ¶¶ 1-2, 109, ECF No. 21.) They bring claims 

of negligent misrepresentation, aiding and abetting fraud, and aiding and 

abetting breach of fiduciary duty against a group of domestic and foreign 

defendant entities responsible for the foreign fund’s accounting and audit 

work. The Plaintiffs say they relied upon fraudulent information provided by 

Case 1:20-cv-21808-RNS Document 85 Entered on FLSD Docket 07/11/2023 Page 1 of 23
the GT Defendants and the Bolder Defendants in choosing to invest in, and 

retaining their investments in, the foreign fund. (Id. ¶ 36.) 

Plaintiff Todd Benjamin is a resident of the United Kingdom and a United 

States citizen. (Id. ¶ 2.) Plaintiff TBIL is a legal entity incorporated in the 

United Kingdom. (Id. ¶ 1.) 

GT Cayman and GT Ireland are legal entities organized under the laws of 

the Cayman Islands and Ireland, respectively. (Id. ¶¶ 4-5.) They each provide 

investment fund auditing services. (Id. ¶ 45.) GTIL is a legal entity incorporated 

in England and Wales and headquartered in London, England, United 

Kingdom. (Id. ¶ 3.) According to the Engagement Letters relied upon in the 

pleadings, GTIL is an organization of independently owned and managed 

accounting and consulting firms. (ECF No. 58-4 at 19.) GTIL coordinates 

strategy among its member firms, which include GT Cayman and GT Ireland. 

(Am. Compl. ¶ 43.) 

Bolder USA is a Delaware limited liability company with its principal 

place of business in Orlando, Florida. (Id. ¶ 6.) Bolder USA was formerly 

named Circle Investment Support Services (USA), LLC before changing its 

name in October 2021. (Id.) Bolder Cayman is a legal entity organized under 

the laws of the Cayman Islands. (Id. ¶ 7.) Bolder Cayman was formerly named 

Circle Investment Support Services (Cayman), Ltd. before changing its name in 

October 2021. (Id.) The Bolder Defendants (before their name change, the 

“Circle Partners”) offer administrative services for investment funds, including 

help with investor relations and communications, financial accounting, and 

generation of monthly “Net Asset Value” calculations used to value client 

investments at a given time. (Id. ¶ 72.) 

TCA Fund Management Group Corp. d/b/a TCA Fund Management 

Group (“TCA Management”) is an SEC-registered investment management 

advisory service located in Aventura, Florida. (Id. ¶ 8.) Beginning in September 

of 2011, TCA Management managed and provided investment advisory services 

to three pooled investment vehicles (together, “the Funds”), all of which were 

located in the Cayman Islands: (1) the TCA Global Credit Master Fund, L.P. 

(the “Master Fund”); (2) TCA Global Credit Fund, L.P.; and (3) TCA Global 

Credit Fund, Ltd. (together with TCA Global Credit Fund, L.P., the “Feeder 

Funds”). (Id. ¶¶ 20-25.) 

The Feeder Funds raised money by selling securities and fed the monies 

raised into the Master Fund. (Id. ¶ 20-25.) TCA Global Credit Fund, L.P. 

invested its assets in the Master Fund and served as the vehicle for investment 

in the Master Fund by U.S. citizens. (Id.) TCA Global Credit Fund, Ltd. invested 

its assets in the Master Fund and served as the vehicle for investments in the 

Master Fund by foreign citizens. (Id.) The Master Fund was used for shortCase 1:20-cv-21808-RNS Document 85 Entered on FLSD Docket 07/11/2023 Page 2 of 23
term, senior secured, direct lending to micro- and small-cap companies in need 

of capital. (Id. ¶ 22.) 

GT Ireland and GT Cayman provided independent auditing services to 

evaluate TCA Management’s statements of financial positions for the Funds for 

2017 and 2018 and TCA Management’s accounting policies for reasonableness 

of their accounting estimates in conjunction with these audits. (Id. ¶ 41.) 

Following email and telephonic communications, as well as two in-person 

meetings in Florida with TCA Management attended by GT Ireland and GT 

Cayman representatives, Engagement Letters describing the agreement for 

auditing services were finalized (ECF No. 21 ¶¶ 17, 56; ECF No. 58-4 at 48.) 

These Engagement Letters, signed by GT Cayman, GT Ireland, and the General 

Partner of the Funds (the Director of TCA Global Credit GP, Ltd.), contained a 

choice of law provision and an exclusive forum selection clause binding the 

parties to the agreement to Cayman Islands law and jurisdiction. (ECF No. 58-

1 at 11, 16.) Throughout 2018 and into 2019, GT Ireland and GT Cayman 

continued to email and telephone TCA Management officers in Florida in 

relation to the 2017 and 2018 audits, with one more in-person meeting 

occurring in November of 2018 attended by GT Ireland representatives. (Am. 

Compl. ¶ 17.) 

The Bolder Defendants, acting as Circle Partners at the time, became 

administrators to the Funds in August 2014. (Id. ¶ 70). The Bolder Defendants 

provided administrative services to the Funds by helping with investor 

relations, providing financial accounting services, and generating monthly “Net 

Asset Value” calculations used to value client investments in the Funds at any 

given time. (Id. ¶¶ 18, 72.) Investors were required to sign Subscription 

Documents that outlined the terms of the investment agreement anytime they 

contributed to the Funds. (ECF No. 58-1 at 16.) These Subscription Documents 

constituted agreements between Circle Partners and the General Partner of the 

Funds (TCA Global Credit Fund GP, Ltd.), and their terms were read and 

signed by investors during each transaction. (ECF No. 58-1 at 3, 6-7.) Section 

16 of the Subscription Documents include the following choice of law provision 

and forum selection clause: 

The Subscription Agreement will be governed by and construed in 

accordance with the laws of the Cayman Islands, without regard to 

conflict of laws principles. The Subscriber submits to the exclusive 

jurisdiction of the Cayman Islands courts with respect to any 

actions against the Partnership, the General Partner, the 

Investment Manager and the Administrator. 

 

Case 1:20-cv-21808-RNS Document 85 Entered on FLSD Docket 07/11/2023 Page 3 of 23
 Plaintiffs TBIL and Mr. Benjamin invested in the Master Fund beginning 

in or about June 2018 and June 2019, respectively. (Am. Compl. ¶¶ 31, 33.) At 

the time of making their investments, the Plaintiffs relied on the accuracy of 

information made available to them by TCA Management, Circle Partners, and 

the GT Defendants—including the offering documents, TCA Management’s 

Form ADV, marketing brochures, newsletters, audited financial statements by 

GT Cayman and GT Ireland, NAV calculations calculated and approved by 

Circle Partners, and additional materials provided by TCA Management—in 

deciding to invest in the Master Fund, and, thereafter, in deciding not to 

withdraw those investments. (Id. ¶¶ 34-37.) 

 The Plaintiffs allege that certain of the individual officers and directors of 

GT Cayman, GT Ireland, and Circle Partners were aware that TCA Management 

failed to remove or properly value bad loans and created phantom “investment 

advisory” fees that were illusory and uncollectable, and that they helped TCA 

Management to cover this up. (Id. ¶¶ 49, 76-77, 96, 159.)

For example, internal emails from Circle Partners to TCA Management 

reveal that officers from Circle Partners would routinely ask officers at TCA 

Management if they were “comfortable” with the monthly NAV calculation, and, 

following that monthly check-in, would improperly alter the reported NAV 

based on unsupported feedback from certain members of TCA Management. 

(Id. ¶ 74.)

Additionally, an unreleased draft audit report from 2017 revealed that 

officers from GT Ireland and GT Cayman had knowledge of TCA Management’s 

improper revenue recognition and reporting, inappropriate documentation for 

amounts receivable related to investment banking work as derivative assets 

and warrants, lack of audit evidence for loans and improper classification of 

loan performance and valuation of loans, lack of definite documentation as to 

repayment of note receivable by TCA Management, and improper and 

inadequate records maintenance and loan management systems. (Id. ¶ 49.) 

Despite this, GT Ireland, GT Cayman, and TCA Management worked in tandem 

to edit the draft so that the resulting final audit from 2017 downplayed or 

omitted these observations of mismanagement and overvaluation. (Id. ¶¶ 48-

51.) The problems persisted into 2018 so much so that GT Ireland and GT 

Cayman felt they could not provide a favorable audit for TCA Management, and 

even threatened to issue an adverse opinion for the 2018 audit. (Id. ¶ 59.) In 

the end, no adverse opinion was issued because GT Ireland, GT Cayman, and 

TCA Management agreed on a plan by which additional third-party 

independent auditors were brought in to do audit work which GT Ireland and 

GT Cayman then certified and adopted for their own opinion, and which TCA 

Management provided to investors. (Id. ¶¶ 62-65.) The final 2018 audit 

Case 1:20-cv-21808-RNS Document 85 Entered on FLSD Docket 07/11/2023 Page 4 of 23
therefore downplayed or omitted the problems which had been previously 

identified in the 2017 draft audit and which were known to GT Ireland, GT 

Cayman, and TCA Management. (Id.) 

 The Plaintiffs maintain that because of the fraudulent monthly NAV 

reports from Circle Partners and the fraudulent yearly audits from GT Ireland 

and GT Cayman, investors were fed false information about the business model 

of the Master Fund and about the profit value of their investments. (Id. ¶¶ 88-

89.) In a December 2019 newsletter to investors, TCA Management boasted of 

“35 months of straight profits touting over $500 million in assets under 

management and a 7.07% year to date return.” (Id. ¶ 28.) Just one month later, 

three TCA employees would blow the whistle to the SEC, alleging these 

numbers were fabricated coverups of investor losses totaling more than $400 

million. (Id. ¶ 29.) An SEC investigation began as the Funds collapsed and 

entered a dissolution process on or about January 21, 2020. (Id. ¶¶ 80-81.) 

 On May 11, 2020, the SEC filed a complaint in the Southern District of 

Florida against TCA Fund Management Group Corp., TCA Global Credit Fund 

GP, Ltd., TCA Global Credit Fund, LP., TCA Global Credit Fund, Ltd., and TCA 

Global Credit Master Fund, LP. (Am. Compl. ¶ 85-87, ECF No. 21; SEC v. TCA 

Fund Mgmt. Corp., No. 1:20-cv-21964-CMA (S.D. Fla. Oct. 14, 2022).) Chief 

Judge Cecilia Altonaga issued an order in that case granting a motion for the 

appointment of a Receiver to take legal charge of all TCA assets. (SEC v. TCA 

Fund Mgmt. Corp., No. 1:20-cv-21964-CMA, ECF No. 5 (S.D. Fla. May 11, 

2020).) The order included a stay of litigation for “all civil legal proceedings of 

any nature” involving “the Receiver,” “any Receivership Property” “any of the 

Receivership Entities including subsidiaries and partnerships,” and “any of the 

Receivership Entities’ past or present officers, directors, managers, agents, or 

general or limited partners sued for, or in connection with, any action taken by 

them while acting in such capacity of any nature.” (Id.) The order stated that 

the parties to any such proceedings were enjoined from “commencing or 

continuing any such legal proceeding,” from “taking any action, in connection 

with any such proceeding,” and that all such proceedings were “stayed in their 

entirety” with “all courts having any jurisdiction thereof . . . enjoined from 

taking or permitting any action until further Order of this Court.” (Id.) 

 Consequently, the parties involved in the present matter include only the 

investors (the Plaintiffs), the fund auditors (the GT Defendants), and the fund 

accountants (the Bolder Defendants), while the fund manager, the fund general 

partner, and the funds themselves (TCA Fund Management Group Corp.; TCA 

Global Credit Fund GP, Ltd.; and TCA Global Credit Fund, LP., TCA Global 

Credit Fund, Ltd., and TCA Global Credit Master Fund, LP.) are absent. 

Case 1:20-cv-21808-RNS Document 85 Entered on FLSD Docket 07/11/2023 Page 5 of 23
 The Plaintiffs presently bring claims against GT Ireland, GT Cayman, 

Bolder USA and Bolder Cayman for negligent misrepresentation, aiding and 

abetting fraud, and aiding and abetting breach of fiduciary duty for enabling 

TCA Management’s overvaluation scheme via the audit and accounting work 

they performed for the Master Fund. The Plaintiffs do not allege that GTIL 

performed any work for the Master Fund. Rather, the Plaintiffs allege that GTIL 

is a principal, and GT Ireland and GT Cayman are its agents, thereby making 

GTIL liable for the others’ acts and omissions. They raise the same three claims 

against GTIL under this agency theory. 

 The GT Defendants and the Bolder Defendants argue in their joint 

motion that this Court should dismiss the claims against them for the following 

reasons: (1) because the Plaintiffs are bound by valid forum selection clauses 

found in the Engagement Letters and Subscription Documents; (2) because 

this Court lacks personal jurisdiction over any of the Defendants in this 

matter; and alternatively (3) because pleadings are inadequate and are not 

made with sufficient specificity as is required to satisfy the heightened fraud 

pleading standard of Rule 9(b) of the Federal Rules of Civil Procedure. 

2. Legal Standards 

(A) Forum Non Conveniens 

The “appropriate way to enforce a forum-selection clause pointing to a 

state or foreign forum is through the doctrine of forum non conveniens.” Atl. 

Marine Const. Co. v. U.S. Dist. Court for the W. Dist. of Texas, 571 U.S. 49, 60 

(2013). Ordinarily, to obtain dismissal based on forum non conveniens, the 

moving party must demonstrate that “(1) an adequate alternative forum is 

available, (2) the public and private factors weigh in favor of dismissal, and (3) 

the plaintiff can reinstate his suit in the alternative forum without undue 

inconvenience or prejudice.” GDG Acquisitions, LLC v. Gov’t of Belize, 749 F.3d 

1024, 1028 (11th Cir. 2014). In analyzing these factors, a court “must draw all 

reasonable inferences and resolve all factual conflicts in favor of the plaintiff,” 

Wai v. Rainbow Holdings, 315 F. Supp. 2d 1261, 1268 (S.D. Fla. 2004) 

(Altonaga, J.), but “may consider matters outside the pleadings.” Webster v. 

Royal Caribbean Cruises, Ltd., 124 F. Supp. 2d 1317,1320 (S.D. Fla. 2000) 

(Gold, J.); see also Atl. Marine, 134 S. Ct. at 581 (“In the typical case not 

involving a forum-selection clause, a district court . . . must evaluate both the 

convenience of the parties and various public-interest considerations.”). 

“When faced with such a motion based on a valid forum-selection clause, 

however, the calculus is substantially adjusted to recognize that such a clause 

should be ‘given controlling weight in all but the most exceptional cases.’” 

Case 1:20-cv-21808-RNS Document 85 Entered on FLSD Docket 07/11/2023 Page 6 of 23
Turner v. Sedgwick Claims Mgmt. Servs., Inc., No. 7:14–CV–1244–LSC, 2015 WL 

225495, at *4 (N.D. Ala. Jan. 16, 2015) (quoting Atl. Marine, 134 S. Ct. at 581). 

“[T]he plaintiff’s choice of forum merits no weight.” Atl. Marine, 134 S. Ct. at 

581. “Rather, as the party defying the forum-selection clause, the plaintiff 

bears the burden of establishing that transfer to the forum for which the 

parties bargained is unwarranted.” Id. Moreover, in evaluating a motion based 

on a forum-selection clause, a court should “not consider arguments about the 

parties’ private interests.” Id. at 582. “When parties agree to a forum-selection 

clause, they waive the right to challenge the preselected forum as inconvenient 

or less convenient for themselves or their witnesses, or for their pursuit of the 

litigation.” Id. “As a consequence, a district court may consider arguments 

about public-interest factors only.” Id. Because “these factors will rarely defeat 

a transfer motion, the practical result is that forum-selection clauses should 

control except in unusual circumstances.” Id. 

(B) Personal Jurisdiction 

“A plaintiff seeking the exercise of personal jurisdiction over a 

nonresident defendant bears the initial burden of alleging in the complaint 

sufficient facts to make out a prima facie case of jurisdiction.” United Techs. 

Corp. v. Mazer, 556 F.3d 1260, 1274 (11th Cir. 2009). A defendant challenging 

personal jurisdiction must present evidence to counter the plaintiff’s 

allegations. Internet Sols. Corp. v. Marshall, 557 F.3d 1293, 1295 (11th Cir. 

2009). Once the defendant has presented sufficient evidence, “the burden 

shifts to the plaintiff to prove jurisdiction by affidavits, testimony or 

documents.” Id. 

Florida’s long-arm statute permits a court to exercise personal 

jurisdiction over a person who commits a tortious act within Florida. Fla. Stat. 

§ 48.193(1)(a)(2) (2022). This long-arm jurisdiction even extends to defendants 

who committed their tortious acts outside the state if their acts “cause injury in 

Florida.” Posner v. Essex Ins. Co., Ltd., 178 F.3d 1209, 1216 (11th Cir.1999). 

For purposes of this analysis, copyright infringement is considered a tort. Cf.

BUC Int’l Corp. v. Int’l Yacht Council Ltd., 517 F.3d 1271, 1278 (11th Cir. 2008) 

(“[C]opyright infringement is in the nature of a tort.”). 

After ensuring that it has personal jurisdiction over a particular 

defendant under the forum state’s long-arm statute, a court must next ensure 

that invoking personal jurisdiction would not violate the defendant’s Due 

Process rights. The Eleventh Circuit uses a three-part due process test: 

(1) whether the plaintiff’s claims arise out of or relate to at least one of 

the defendant’s contacts with the forum; 

Case 1:20-cv-21808-RNS Document 85 Entered on FLSD Docket 07/11/2023 Page 7 of 23
(2) whether the nonresident defendant purposefully availed himself of the 

privilege of conducting activities within the forum state, thus invoking 

the benefit of the forum state’s laws; and 

(3) whether the exercise of personal jurisdiction comports with traditional 

notions of fair play and substantial justice. 

Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1355 (11th Cir. 2013) 

(internal quotation marks omitted). 

As to the first prong (arising out of or relatedness) a court should “focus 

on the direct causal relationship between the defendant, the forum, and the 

litigation.” Id. at 1355–56. As to the second prong (purposeful availment) a 

court may apply the traditional minimum-contracts test, or, in intentional-tort 

cases, may utilize the effects test. “Under the ‘effects test,’ a nonresident 

defendant’s single tortious act can establish purposeful availment, without 

regard to whether the defendant had any other contacts with the forum state.” 

Id. at 1356 (citation omitted). “This occurs when the tort: (1) was intentional; 

(2) was aimed at the forum state; and (3) caused harm that the defendant 

should have anticipated would be suffered in the forum state.” Id. (internal 

punctuation & citation omitted). As to the third prong (fair play and substantial 

justice) a court should “consider these factors: (1) the burden on the defendant; 

(2) the forum’s interest in adjudicating the dispute; (3) the plaintiff’s interest in 

obtaining convenient and effective relief; and (4) the judicial system’s interest in 

resolving the dispute.” Id. at 1358 (quotation marks omitted). 

(C) Failure to State a Claim Upon Which Relief May Be Granted 

When considering a motion to dismiss under Federal Rule of Civil 

Procedure 12(b)(6), the Court must accept all the complaint’s allegations as 

true, construing them in the light most favorable to the plaintiff. Pielage v. 

McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). A pleading need only contain 

“a short and plain statement of the claim showing that the pleader is entitled to 

relief.” Fed. R. Civ. P. 8(a)(2). “[T]he pleading standard Rule 8 announces does 

not require detailed factual allegations, but it demands more than an 

unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. 

Iqbal, 556 U.S. 662, 678 (2009) (quotation omitted). A plaintiff must articulate 

“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 

Corp. v. Twombly, 550 U.S. 544, 570 (2007). 

“A claim has facial plausibility when the plaintiff pleads factual content 

that allows the court to draw the reasonable inference that the defendant is 

liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility 

standard is not akin to a ‘probability requirement,’ but it asks for more than a 

Case 1:20-cv-21808-RNS Document 85 Entered on FLSD Docket 07/11/2023 Page 8 of 23
sheer possibility that a defendant has acted unlawfully.” Id. “Threadbare 

recitals of the elements of a cause of action, supported by mere conclusory 

statements, do not suffice.” Id. Thus, a pleading that offers mere “labels and 

conclusions” or “a formulaic recitation of the elements of a cause of action” will 

not survive dismissal. See Twombly, 550 U.S. at 555. “Rule 8 marks a notable 

and generous departure from the hyper-technical, code-pleading regime of a 

prior era, but it does not unlock the doors of discovery for a plaintiff armed 

with nothing more than conclusions.” Iqbal, 556 U.S. at 679. 

Yet, where the allegations “possess enough heft” to suggest a plausible 

entitlement to relief, the case may proceed. See Twombly, 550 U.S. at 557. 

“[T]he standard ‘simply calls for enough fact to raise a reasonable expectation 

that discovery will reveal evidence’ of the required element.” Rivell v. Private 

Health Care Sys., Inc., 520 F.3d 1308, 1309 (11th Cir. 2008). “And, of course, a 

well-pleaded complaint may proceed even if it strikes a savvy judge that actual 

proof of those facts is improbable, and ‘that a recovery is very remote and 

unlikely.’” Twombly, 550 U.S. at 556. 

Where a cause of action sounds in fraud, however, Federal Rule of Civil 

Procedure 9(b) must be satisfied in addition to the more relaxed standard of 

Rule 8. Under Rule 9(b), “a party must state with particularity the 

circumstances constituting fraud or mistake,” although “conditions of a 

person’s mind,” such as malice, intent, and knowledge, may be alleged 

generally. Fed. R. Civ. P. 9(b). “The ‘particularity’ requirement serves an 

important purpose in fraud actions by alerting defendants to the precise 

misconduct with which they are charged and protecting defendants against 

spurious charges of immoral and fraudulent behavior.” W. Coast Roofing & 

Waterproofing, Inc. v. Johns Manville, Inc., 287 F. App’x 81, 86 (11th Cir. 2008) 

(citations omitted). “When a plaintiff does not specifically plead the minimum 

elements of their allegation, it enables them to learn the complaint’s bare 

essentials through discovery and may needlessly harm a defendant’s goodwill 

and reputation by bringing a suit that is, at best, missing some of its core 

underpinnings, and, at worst, [grounded on] baseless allegations used to 

extract settlements.” U.S. ex rel. Clausen v. Lab. Corp. of Am., Inc., 290 F.3d 

1301, 1313 n.24 (11th Cir. 2002). Thus, the Rule’s “particularity” requirement 

is not satisfied by “conclusory allegations that certain statements were 

fraudulent; it requires that a complaint plead facts giving rise to an inference of 

fraud.” W. Coast Roofing & Waterproofing, 287 F. App’x at 86. To meet this 

standard, the complaint needs to identify the precise statements, documents, 

or misrepresentations made; the time and place of, and the persons 

responsible for, the alleged statements; the content and manner in which the 

Case 1:20-cv-21808-RNS Document 85 Entered on FLSD Docket 07/11/2023 Page 9 of 23
statements misled the plaintiff; and what the defendant gained through the 

alleged fraud. Id. 

3. Analysis 

The Court first addresses the validity and enforceability of the forum 

selection clauses raised by the Defendants, concluding that the Bolder 

Defendants are the only entities entitled to dismissal under a forum non 

conveniens analysis. The Court next addresses personal jurisdiction over the 

GT Defendants, finding that it may exercise personal jurisdiction over GT 

Cayman and GT Ireland. Finally, the Court addresses the adequacy of the 

pleadings against GT Cayman and GT Ireland, determining the claims against 

those Defendants to be sufficiently pleaded and to state claims upon which 

relief may be granted. 

A. Forum Selection Clauses 

First, the Court addresses the Defendants’ arguments that the Plaintiffs’ 

claims are subject to forum selection clauses requiring litigation in the Cayman 

Islands. The Court finds that the Plaintiffs’ claims against the Bolder 

Defendants must be litigated in the Cayman Islands based on the Subscription 

Documents’ forum selection clause, but the Plaintiffs’ claims against the GT 

Defendants are not subject to any forum selection clause. 

(1) The Plaintiffs and the Bolder Defendants are bound by the 

subscription documents’ valid, enforceable, and mandatory forum 

selection clause. 

“Forum selection clauses are presumptively valid and enforceable.” 

Krenkel v. Kerzner Int’l Hotels Ltd., 579 F.3d 1279, 1281 (11th Cir. 2009). Here, 

each subscriber to the TCA Global Credit Fund, LP, including the Plaintiff Todd 

Benjamin, received and signed subscription documents with the following 

choice of law provision and forum selection clause: “The Subscription 

Agreement will be governed by and construed in accordance with the laws of 

the Cayman Islands, without regard to conflict of laws principles. The 

Subscriber submits to the exclusive jurisdiction of the Cayman Islands courts 

with respect to any actions against the Partnership, the General Partner, the 

Investment Manager and the Administrator.” (ECF No. 58-1 at 3.) 

“In order to bind a non-party to a forum selection clause, the party must 

be closely related to the dispute such that it becomes foreseeable that it will be 

bound.” Lipcon v. Underwriters at Lloyd's, London, 148 F.3d 1285, 1299 (11th 

Cir. 1998) (quotation marks and citations omitted). A sufficiently close 

Case 1:20-cv-21808-RNS Document 85 Entered on FLSD Docket 07/11/2023 Page 10 of 23
relationship to enforce a forum selection clause against a non-party can be 

found when “the non-party is an alter-ego of the signatory, a successor entity 

to the signatory or is owned or primarily owned by the signatory.” Maale v. 

Kirchgessner, No. 08-80131-CIV, 2011 WL 1565912, at *10 (S.D. Fla. Feb. 18, 

2011) (Snow, Mag. J.) (quoting Sealord Marine Co. Ltd. v. American Bureau of 

Shipping, 220 F. Supp. 2d 260, 270 (S.D.N.Y.2002) (internal citations omitted)), 

report and recommendation adopted in part and overruled in part, Maale v. 

Kirchgessner, No. No. 08-80131-CIV, 2011 WL 1549058, at *6 (S.D. Fla. Apr. 

22, 2011) (Dimitrouleas, J.). 

The Plaintiffs argue that the mandatory forum selection clause should 

apply exclusively to Bolder Cayman because its predecessor, Circle Cayman, 

was the sole “express third-party beneficiary.” (ECF No. 68 at 28.) However, the 

Plaintiffs fail to distinguish between Circle Cayman and Circle USA in their own 

complaint, treating the two entities as one joint operation. The pleadings state 

that “Circle Partners became the fund administrator to the Feeder Funds and 

Master Fund in 2014 after an acquisition of its predecessor-in-interest in 

August 2014.” (ECF No. 21 ¶70.) After defining “Circle Partners” as “Bolder 

Cayman, and together with Bolder USA” on the first page of the First Amended 

Complaint, the Plaintiffs address “Circle Partners” without distinguishing 

between the USA and the Cayman branches. (Id. ¶18.) The Complaint refers 

repeatedly and only to “Circle Partners” because during the relevant time 

period, the services were provided by both of the Circle entities (rather than 

their Bolder successors.) (ECF No. 21 at 3 n.1.) 

The Subscription Document also identifies “Circle Partners” generally as 

the Funds’ “Administrator.” (ECF No. 58-1 at 3, 7.) The address provided on the 

Subscription Documents reflects a Circle Partners office located in the Cayman 

Islands. (Id.) And the Plaintiffs never dispute that Circle USA and Circle 

Cayman were predecessors to Bolder USA and Bolder Cayman, respectively. 

Based on the Plaintiffs’ own language, then, the court finds a sufficiently 

“close relationship,” analogous to an alter-ego relationship, between Circle USA 

and Circle Cayman—and therefore between Bolder USA and Bolder Cayman—

to apply the forum selection clause to both entities. See Maale, 2011 WL 

1565912, at *10. Accordingly, the forum selection clause applies to both of the 

Bolder Defendants as successor entities to the Funds’ Administrator. 

(2) The forum selection clause requires the dismissal of the Bolder 

Defendants under a forum non conveniens analysis. 

Because the Court finds that the forum-selection clause is valid and 

enforceable as to both the Bolder Defendants, the modified analysis in Atlantic 

Case 1:20-cv-21808-RNS Document 85 Entered on FLSD Docket 07/11/2023 Page 11 of 23
Marine applies.1 571 U.S. at 62. The first part of this analysis requires the 

Court to determine whether an adequate alternative forum exists. McArthur v. 

Kerzner Int’l Bahamas Ltd., 607 F. App’x 845, 848 (11th Cir. 2015); see also

Leon v. Millon Air, Inc., 251 F.3d 1305, 1310–11 (11th Cir. 2001). To be 

available, a foreign forum must be able to assert jurisdiction over the matter 

whose transfer is sought. Aldana v. Del Monte Fresh Produce, N.A., Inc., 578 

F.3d 1283, 1289–90 (11th Cir. 2009); abrogated on other grounds by Fresh 

Results, LLC v. ASF Holland, B.V., 921 F.3d 1043, 1049-53 (11th Cir. 2019). A 

foreign forum is adequate when the parties will not be deprived of all remedies 

or treated unfairly, even though they may not enjoy the same benefits as they 

might receive in an American court. See Piper Aircraft Co. v. Reyno, 454 U.S. 

235, 255 n. 22 (1981). Here, the Bolder defendants consented to jurisdiction in 

the Cayman Islands, an adequate alternative forum with the ability to provide 

relief for the Plaintiffs. See Tradex Glob. Master Fund SPC Ltd. v. Palm Beach 

Cap. Mgmt., LLC, No. 09-21622-CIV, 2010 WL 717686, at *7 (S.D. Fla. Mar. 1, 

2010) (Moreno, J.). Accordingly, the Court finds that Cayman Islands is both 

available and adequate as an alternative forum. 

 The Court notes that the private factors under the Atlantic Marine

analysis are deemed to weigh in favor of dismissal. A court evaluating a 

defendant’s forum non conveniens motion based on a forum-selection clause 

“should not consider arguments about the parties’ private interest” because 

“[w]hen parties agree to a forum-selection clause, they waive the right to 

challenge the preselected forum as inconvenient or less convenient for 

themselves or their witnesses, or for their pursuit of the litigation.” Atl. 

Marine, 571 U.S. at 64. “A court accordingly must deem the private-interest 

factors to weigh entirely in favor of the preselected forum.” Id.

 Next, the Court must consider the relevant public interest factors to 

determine whether dismissal is appropriate. The public interest factors to be 

considered include: “the administrative difficulties flowing from court 

congestion; the local interest in having localized controversies decided at home; 

the interest in having the trial of a diversity case in a forum that is at home 

with the law that must govern the action; [and] the avoidance of unnecessary 

problems in conflicts of law, or in the application of foreign law.” Piper Aircraft, 

454 U.S. at 241 n.6; Pierre-Louis v. Newvac Corp., 584 F.3d 1052, 1056 (11th 

Cir. 2009). 

 First, the Court considers whether administrative difficulties flowing from 

court congestion weigh in favor of dismissal. The Court notes that the Southern 

District of Florida has one of the busiest dockets in the country, and this factor 

1 No party disputes the validity of the forum selection clause. 

Case 1:20-cv-21808-RNS Document 85 Entered on FLSD Docket 07/11/2023 Page 12 of 23
therefore weighs in favor of dismissal. Nonetheless, this factor generally does 

not warrant significant consideration in the forum non conveniens analysis, 

and the Court does not accord it much weight. See Morse v. Sun Int’l Hotels 

Ltd., No. 98–7451–Civ, 2001 WL 34874967, at *6 (S.D. Fla., Feb. 26, 2001) 

(Jordan, J.). 

Second, the Court finds that the local interest in adjudicating this 

controversy weighs in favor of dismissal and litigation in the Cayman Islands. 

The Court first acknowledges the proposition that a general interest exists in 

allowing United States citizens to bring suit in a United States court. See SME 

Racks, Inc. v. Sistemas Mecanicos Para Electronica, S.A., 382 F.3d 1097, 1101–

02 (11th Cir. 2004). Mr. Benjamin is a United States citizen and a resident of 

the United Kingdom. However, the services provided by the Bolder Defendants 

were performed for entities located in the Cayman Islands. Relevant public 

factors include “the familiarity of the court(s) with the governing law, the 

interest of any foreign nation in having the dispute litigated in its own courts, 

and the value of having local controversies litigated locally.” Vanderham v. 

Brookfield Asset Mgmt., Inc., 102 F. Supp. 3d 1315, 1320 (S.D. Fla. 2015) 

(Moore, J.) (quoting Pierre–Louis, 584 F.3d at 1056). Accordingly, due to the 

valid and enforceable forum selection clause that grants the Cayman Islands 

exclusive jurisdiction, paired with the choice of law provision that specifies 

Cayman Islands law as controlling, the Court finds the public considerations 

weigh in favor dismissal to the Cayman Islands. Id. 

Third, Cayman Islands law governs the action because the Plaintiffs 

signed an enforceable choice of law provision that governs this claim. Mazzoni 

Farms, Inc. v. E.I. DuPont De Nemours and Co., 761 So. 2d 306, 311 (Fla. 2000) 

(“Generally, Florida enforces choice-of-law provisions unless the law of the 

chosen forum contravenes strong public policy.”). Therefore, this factor also 

weighs in favor of dismissal. 

Finally, the Court concludes that dismissal is appropriate because the 

Plaintiffs can reinstate their lawsuit in the Cayman Islands without undue 

inconvenience or prejudice. See Leon, 251 F.3d at 1310-11. The Bolder 

Defendants have specifically consented to Cayman Islands jurisdiction. (ECF 

No. 82 at 28.) 

Thus, the Plaintiffs have failed to sufficiently carry their burden to 

overcome the “practical result . . . that forum-selection clauses should control 

except in unusual circumstances.” Atl. Marine, 571 U.S. at 63-64. Accordingly, 

under the forum non conveniens analysis articulated in Atlantic Marine, the 

Court finds this case should be dismissed with respect to the Bolder 

Defendants. 

Case 1:20-cv-21808-RNS Document 85 Entered on FLSD Docket 07/11/2023 Page 13 of 23
(3) The engagement letters’ forum selection clause cannot be 

enforced by the GT Defendants against the non-signatory 

Plaintiffs. 

The GT Defendants claim that the forum selection clause contained in 

the Engagement Letters, which specifies Cayman Islands jurisdiction as 

exclusive, shields them from the present suit brought in the Southern District 

of Florida. (ECF No. 58 at 28-30.) The Engagement Letters were signed by GT 

Ireland, GT Cayman, and TCA Global Credit Fund, Ltd. and described the 

auditing services to be performed. (ECF 58-4 at 59). The Plaintiffs were not 

signatories or parties to the Engagement Letters, and GT is attempting to 

enforce the clause against the Plaintiffs based on their close relationship to the 

present dispute. (ECF No. 58 at 38-40.) 

“In order to bind a non-party to a forum selection clause, the party must 

be ‘closely related’ to the dispute such that it becomes ‘foreseeable’ that it will 

be bound.” Lipcon v. Underwriters at Lloyd's, London, 148 F.3d 1285, 1299 

(11th Cir. 1998) (quoting Manetti–Farrow, Inc. v. Gucci Am., Inc., 858 F.2d 509, 

514 n.5 (9th Cir.1988)). Courts have bound a non-party to a forum selection 

clause when the non-party’s interests are “completely derivative” of those of a 

party to an agreement, and thus “directly related to, if not predicated upon” the 

interests of the parties. Id. 

As stated above, to enforce a forum selection clause against a non-party, 

the court must find a close relationship analogous to alter-ego entities, 

successorship, or primary to complete ownership. Maale, 2011 WL 1565912 at 

*10. Unlike these close relationships, here, the Defendants have failed to 

demonstrate how the Plaintiffs are so closely related to the relationship 

between the Funds and the GT Defendants memorialized by the Engagement 

Letters. The Plaintiffs simply invested in the Fund; they are not alter-egos of, 

successors of, nor primarily owned by any of the parties to the Engagement 

Letters. Id. Therefore, the Engagement Letters’ forum selection clause is 

inapplicable to the Plaintiffs. 

(4) The Subscription Documents’ forum selection clause cannot be 

enforced by the non-signatory GT Defendants against the 

Plaintiffs. 

Alternatively, the Defendants argue that the GT Defendants are 

sufficiently related to the entities expressly named in the Subscription 

Documents to enforce its forum selection clause against the Plaintiffs. (ECF No. 

58 at 30-31.) 

Case 1:20-cv-21808-RNS Document 85 Entered on FLSD Docket 07/11/2023 Page 14 of 23
In a similar investment fraud case, Tradex Global Master Fund SPC Ltd v. 

Palm Beach Capital Management LLC, this Court considered whether a forum 

selection clause should apply to a fund administrator, Admiral, that was not a 

signatory to the Subscription Agreement. Accordingly, we conclude that the 

absence of Offshore’s signature on the Subscription Agreements does not 

render the forum selection clause unenforceable. No. 09-21622-CIV, 2009 WL 

10644816, at *5 (S.D. Fla. Dec. 4, 2009) (Torres, Mag. J.), report and 

recommendation adopted sub nom. Tradex Glob. Master Fund SPC Ltd. v. Palm 

Beach Cap. Mgmt., LLC, No. 09-21622-CIV, 2010 WL 11442204 (S.D. Fla. Mar. 

1, 2010) (Moreno, J.). In holding that the administrator was entitled to enjoy 

the benefits of the clause, the Court reasoned that because the Subscription 

Agreements expressly named Admiral as the administrator and deemed 

Admiral the Subscriber’s agent, it was clearly foreseeable that Admiral would 

enforce the forum selection clause. Id. 

Here, “Grant Thornton” was never mentioned in the Subscription 

Documents signed by the Plaintiffs. (ECF No. 58-1 at 6-11, 14.) Further, the GT 

Defendants do not point to—and the Court cannot find—any portion of the 

Subscription Documents that make even an oblique reference to the GT 

Defendants, auditors, or other third-party entities that would support the GT 

Defendants’ foreseeable enforcement of the forum selection clause. (ECF No. 

58-1 at 6-11.) The Court therefore finds that it was not foreseeable to the 

Plaintiffs that the GT Defendants, the independent auditors, could invoke the 

forum selection clause contained in the agreement made between the Plaintiffs 

and the Funds. See Tradex, 2009 WL 10644816, at *4. 

(5) The Plaintiffs cannot be subject to the Engagement Letters’ 

forum selection clause through equitable estoppel. 

Finally, the GT Defendants argue that because the Plaintiffs’ claims are 

based on the audit services performed pursuant to the Engagement Letter, they 

are equitably estopped from rejecting its forum selection clause. However, 

“equitable estoppel allows a nonsignatory to enforce the provisions of a contract 

against a signatory in two circumstances: (1) when the signatory to the 

contract relies on the terms of the contract to assert his or her claims against 

the nonsignatory; and (2) when the signatory raises allegations of 

interdependent and concerted misconduct by both the nonsignatory and one or 

more of the signatories to the contract.” Bahamas Sales Assoc., LLC v. Byers, 

701 F.3d 1335, 1342 (11th Cir. 2012) (emphasis added). Because the Plaintiffs 

were not signatories to the Engagement Letters, this argument fails. 

Case 1:20-cv-21808-RNS Document 85 Entered on FLSD Docket 07/11/2023 Page 15 of 23
B. Personal Jurisdiction 

With Defendants Bolder USA and Bolder Cayman dismissed based on the 

Subscription Documents’ forum selection clause, the Court must determine 

whether it may exercise personal jurisdiction over the GT Defendants. The 

Court finds that it may exercise personal jurisdiction over GT Cayman and GT 

Ireland, but it lacks personal jurisdiction over GTIL. 

“A plaintiff seeking the exercise of personal jurisdiction over a 

nonresident defendant bears the initial burden of alleging in the complaint 

sufficient facts to make out a prima facie case of jurisdiction.” Mazer, 556 F.3d 

at 1274. A defendant challenging personal jurisdiction must present evidence 

to counter the plaintiff’s allegations. See Marshall, 557 F.3d at 1295. Once the 

defendant has presented sufficient evidence, “the burden shifts to the plaintiff 

to prove jurisdiction by affidavits, testimony or documents.” Id. Each step must 

be analyzed first to ensure comportment with the Florida long-arm statute, and 

second, to ensure the exercise of jurisdiction comports with the 14th 

Amendment’s Due Process clause. See Louis Vuitton, 736 F.3d at 1350. 

As explained below, this Court has personal jurisdiction over GT Cayman 

and GT Ireland. GT Cayman and GT Ireland committed are alleged to have 

committed acts placing them within the purview of the Florida long-arm 

statute. They also had sufficient minimum contacts with Florida such that due 

process is not offended: they purposefully availed themselves of the privilege of 

Florida’s laws, so the exercise of jurisdiction would not offend traditional 

notions of fair play and substantial justice. This Court does not have personal 

jurisdiction over GTIL, however. Because GTIL had no contacts with the state 

of Florida or with the Plaintiffs in this matter, it can only be held liable under 

the theory that GT Cayman and GT Ireland are agents acting on behalf of GTIL, 

and the Plaintiffs’ own pleadings in this matter bely the existence or even the 

appearance of such an agency relationship here. 

(1) GT Cayman and GT Ireland’s communications into Florida satisfy 

the long-arm statute and the Due Process Clause. 

Under Florida’s long-arm statute, a nonresident defendant who commits 

a tortious act in Florida submits itself to the jurisdiction of Florida’s courts. See 

Fla. Stat. § 48.193(1)(a)(2) (2022). The defendant need not be physically present 

in the state for the tort to be committed in Florida, so long as the tort arises 

from telephonic, electronic, or written communications made by the 

nonresident defendant into the state of Florida. Kiem v. ADF MidAtlantic, LLC, 

199 F. Supp. 3d 1362, 1367 (S.D. Fla. 2016) (Marra, J.); Wendt v. Horowitz, 

822 So.2d 1252, 1260 (Fla. 2002). To satisfy the “arising out of” requirement, it 

Case 1:20-cv-21808-RNS Document 85 Entered on FLSD Docket 07/11/2023 Page 16 of 23
must be the case that the cause of action for the tort “would depend upon proof 

of either the existence or the content of” the communications into Florida. 

Carlyle v. Palm Beach Polo Holdings, 842 So. 2d 1013, 1017 (Fla. 4th DCA 

2003). 

Once the requirements of the long-arm statute are met, the Court must 

engage in a due process analysis. The inquiry focuses on the defendant's 

contacts with the state, and not the "random, fortuitous, or attenuated" 

contacts it has by interacting with other persons affiliated with the state. 

Walden v. Fiore, 571 U.S. 277, 284, (2014). 

Here, GT Cayman and GT Ireland’s actions in the state and 

communications into the state satisfy both the requirements of the Florida 

long-arm statute and the requirements of Due Process for personal jurisdiction. 

GT Cayman and GT Ireland began communicating via email with TCA 

Management representatives in Florida in December of 2017. Representatives 

from GT Cayman and GT Ireland met in Florida with representatives from TCA 

Management over two days in January of 2018 to agree on terms for the audit 

work. They then executed written Engagement Letters solidifying these terms. 

Thereafter they made numerous telephonic and electronic written 

communications via email into Florida throughout the course of 2018 and 

continuing into 2019, all in connection with the audit work performed for the 

Funds. 

While GT Cayman and GT Ireland attempt in their motion to downplay 

these in-person meetings, numerous phone calls, and numerous emails as 

unrelated and peripheral to the audit work performed for the Funds, this Court 

disagrees. The numerous calls and emails into Florida are sufficient evidence to 

support the Plaintiff’s allegations that personal jurisdiction via Florida’s longarm statute exists here. (Am. Compl. ¶¶ 41-69; ECF No. 69-1 ¶ 7, Exs. 2-32.) 

GT Cayman and GT Ireland communicated with Florida residents 

(representatives of TCA Management) in the state of Florida. From those 

numerous communications arise each of the present causes of actions against 

them. Taking the Plaintiff’s allegations as true, and supported by the 

jurisdictional declaration of Jonathan Perlman and exhibits the Plaintiffs 

submitted in response to the Defendants’ motion, nonresident defendants GT 

Cayman and GT Ireland subjected themselves to Florida’s jurisdiction when 

they committed tortious acts within the state of Florida by means of telephonic 

and electronic communication into the state. (Am. Compl. ¶¶ 41-69; ECF No. 

69-1 ¶ 7, Exs. 2-32.) 

Moreover, these communications satisfy the sufficient minimum contact 

threshold indicating purposeful availment by GT Cayman and GT Ireland of the 

laws of the state of Florida. The Plaintiffs’ claims arise out of the GT Cayman 

Case 1:20-cv-21808-RNS Document 85 Entered on FLSD Docket 07/11/2023 Page 17 of 23
and GT Ireland’s minimum contacts with TCA Management representatives, 

who were located in Florida when they received the communications. In their 

joint motion to dismiss, the GT Defendants argue they did not “aim or target 

Florida” with their actions, but this obfuscates the fact that every meeting held 

in Florida, every phone call made to TCA Management in Florida, and every 

email sent to TCA Management in Florida was an act targeting Florida or 

Floridian individuals for the purposes of conducting mutually profitable 

business with a Florida corporation. (Am. Compl. ¶¶ 41-69; ECF No. 69-1 ¶ 7, 

Exs. 2-32.); Kiem, 199 F. Supp. 3d at 1370. Given that GT Cayman and GT 

Ireland did target their contacts toward a Florida business and its Floridian 

officers, they could reasonably anticipate being hailed into court in Floridian 

jurisdiction in connection with those contacts. Kiem, 199 F. Supp. 3d at 1370. 

Finally, this Court is not convinced that the exercise of jurisdiction would 

offend traditional notions of fair play and substantial justice. The burden on 

these defendants is not unreasonable, given their purposeful availment of the 

privilege of conducting business within the state, given that they have traveled 

to Florida before, and given the advances to modern transportation and 

communication. Luis Vuitton, 736 F.3d at 1358. Florida has an interest in 

adjudicating disputes like this wherein Floridian companies like TCA 

Management orchestrate fraud schemes resulting in losses to hundreds of 

investors. Id. And it is not clear to this Court that litigating in Florida would 

negatively affect the interests of other states in furthering shared policies, or 

that another forum would be a better use of judicial resources. Id. 

For these reasons, the Court finds there is specific personal jurisdiction 

over GT Cayman and GT Ireland. 

(2) Agency-based personal jurisdiction cannot be imputed to GTIL 

based upon its relationship with GT Cayman and GT Ireland. 

The Plaintiffs argue that personal jurisdiction can be exercised over GTIL, 

an entity incorporated and headquartered in the United Kingdom, based on its 

agency relationship with “member firms” GT Cayman and GT Ireland. (ECF No. 

21 ¶ 3.) The Motion to Dismiss argues that the Plaintiffs fail to establish an 

agency relationship that would allow the imputation of jurisdiction to GTIL. 

(ECF No. 58 at 18-22.) The Court agrees with the arguments laid out in the 

motion. 

 “Agency-based personal jurisdiction exists where the parent entity 

exercises operational control over a subsidiary.” Hard Candy, LLC v. Hard 

Candy Fitness, LLC, 106 F. Supp. 3d 1231, 1241 (S.D. Fla. 2015) (Altonaga, J.). 

“Operational control” means “the day-to-day control of the internal affairs or 

basic operations of the subsidiary.” Id. (citing Enic, PLC v. F.F. South & Co., 870 

Case 1:20-cv-21808-RNS Document 85 Entered on FLSD Docket 07/11/2023 Page 18 of 23
So.2d 888, 891–92 (Fla. 5th DCA 2004)). Without such a high degree of control, 

jurisdictional contracts will not be imputed, even when the entities have “a very 

close working relationship” and “regular and extensive contact.” Gen. Cigar 

Holdings, Inc. v. Altadis, S.A., 205 F. Supp. 2d 1335, 1343–44 (S.D. Fla. 2002) 

(Moreno, J.), aff’d 54 F. App’x. 492 (11th Cir. 2002). Jurisdiction can also be 

imputed based on agency when the subsidiary has no independent purpose 

besides conducting business for the parent. See Hard Candy, LLC, 106 F. 

Supp. 3d at 1241. Even if the parent “approves major policy decisions” and 

“establishes the subsidiary’s goals and directives,” this alone is insufficient to 

find an agency relationship sufficient to impute personal jurisdiction. Id. 

 The Defendants provided a declaration by Sumanjeet Parmar, the 

Finance Director for GTIL. Parmar states that GTIL, GT Cayman, and GT 

Ireland each have the following distinctions: separate principal places of 

business; no officers or directors in common; separate accounting systems, 

bank accounts, addresses, telephone numbers, fax numbers, and email 

addresses; no property owned in common; and distinct employee benefit plans. 

Further, Parmar states, “all member firms, including GT Cayman and GT 

Ireland, are responsible for accepting and choosing their own engagements, 

clients, and partners.” (ECF No. 58-5 at 8.) These facts demonstrate that there 

is no agency relationship between GTIL and its member firms sufficient to 

impute personal jurisdiction. 

 Most importantly, however, an exhibit provided in the Plaintiffs’ own 

opposition to the Defendants’ Motion to Dismiss undermines their agency 

argument. Exhibit 3 to Mr. Perlman’s jurisdictional declaration, a document 

titled “Proposal to provide fund audit services,” is dated December 12, 2017 

and signed by Greg O’Driscoll, the Partner & Head of Funds for GT Cayman. 

The final slide of the presentation states that “Grant Thornton International Ltd 

(GTIL) and the member firms are not a worldwide partnership. GTIL and each 

member firm is a separate legal entity. Services are delivered by the member 

firms. GTIL does not provide services to clients. GTIL and its member firms 

are not agents of, and do not obligate, one another and are not liable for 

one another’s acts or omissions.” (ECF No. 69-3 at 11 (emphasis added).) 

Based on this presentation, the Plaintiffs clearly could not have had any 

apparent belief that an agency relationship existed between GTIL and its 

member firms. 

 In the absence of any direct jurisdictional allegations against Defendant 

GTIL, and in light of the jurisdictional evidence presented that demonstrates a 

lack of both actual and apparent agency relationships between GTIL and GT 

Cayman and GT Ireland, the Court must dismiss GTIL for lack of personal 

jurisdiction. 

Case 1:20-cv-21808-RNS Document 85 Entered on FLSD Docket 07/11/2023 Page 19 of 23
C. Failure to State a Claim 

With Defendants Bolder USA, Bolder Cayman, and GTIL dismissed from 

this case, the Court must now address the sufficiency of the amended 

complaint’s allegations against GT Cayman and GT Ireland. The Court finds 

that each claim against these Defendants is pleaded with the requisite 

specificity under Federal Rule of Civil Procedure 9(b). Therefore, the Court 

declines to dismiss the Plaintiffs’ claims against GT Cayman and GT Ireland. 

(1) The Plaintiffs adequately allege intent to plead a claim for 

negligent misrepresentation against GT Cayman and GT Ireland 

The Defendants argue that the Plaintiffs fail to plead any of the necessary 

elements of this claim for negligent misrepresentation (Count I) against GT 

Cayman and GT Ireland with specificity, and that the claim fails to plead the 

requisite intent. (Mot. Dismiss at 34-35.) The Plaintiffs counter that the 

Defendants do not point to the correct standard for negligent 

misrepresentation, and the Plaintiffs have sufficiently pleaded the actual 

elements of the claim. (Resp. at 37-38.) 

The Plaintiffs are correct. First, intent to deceive is not a requirement to 

plead negligent misrepresentation. “The Restatement, quoted with approval in 

Gilchrist Timber Co., 696 So.2d at 337, identifies negligent representation, as 

distinguished from fraudulent representation, as ‘when there is no intent to 

deceive but only good faith coupled with negligence.’” Gilchrist Timber Co. v. ITT 

Rayonier, Inc., 127 F.3d 1390, 1395 (11th Cir. 1997) (quoting Restatement 

(Second) of Torts § 552 cmt. a.) (cleaned up); accord Gilchrist Timber Co. v. ITT 

Rayonier, Inc., 696 So. 2d 334, 339 (Fla. 1997) (“By this opinion, we adopt the 

Restatement (Second) of Torts’ position on negligent misrepresentation 

contained in section 552.”). Rather, “[t]he knowledge element of negligent 

misrepresentation is satisfied when the representer ‘made the representation 

without knowledge of its truth or falsity or should have known the 

representation was false.’” Gilchrist Timber Co. v. ITT Rayonier, Inc., 127 F.3d 

1390, 1395 (11th Cir. 1997). 

Second, the Plaintiffs plead sufficiently specific facts to demonstrate that 

the elements of negligent misrepresentation have been met here. The Plaintiffs 

must plead the following elements: 

(1) a misrepresentation of material fact that the defendant believed to be 

true but was in fact false; (2) that defendant should have known the 

representation was false; (3) the defendant intended to induce the 

Case 1:20-cv-21808-RNS Document 85 Entered on FLSD Docket 07/11/2023 Page 20 of 23
plaintiff to rely on the misrepresentation; and (4) the plaintiff acted in 

justifiable reliance upon the misrepresentation, resulting in injury. 

Hercules Cap., Inc. v. Gittleman, No. 16-CV-81663, 2018 WL 395489, at *21 

(S.D. Fla. Jan. 12, 2018) (Middlebrooks, J.) (quoting Arlington Pebble Creek, 

LLC v. Campus Edge Condo. Ass’n, Inc., 232 So. 3d 502, 505 (Fla. 1st DCA 

2017)). They must plead these elements with specificity because “[h]istorically, 

in Florida an action for negligent misrepresentation sounds in fraud rather 

than negligence.” Wilding v. DNC Servs. Corp., 941 F.3d 1116, 1128 (11th Cir. 

2019) (citation omitted). 

But, as the Plaintiffs correctly observe, “it is the law of this Circuit that 

Rule 9(b)’s heightened pleading standard may be relaxed in instances such as 

these where the facts of the alleged fraud are peculiarly within the Defendants’ 

knowledge.” Noboa v. Castillo, 21-23952-CIV, 2022 WL 2191687, at *5 (S.D. 

Fla. June 17, 2022) (Scola, J.). Additionally, “Rule 9(b)’s requirements may be 

relaxed for allegations of prolonged, multi-act schemes.” Fla. Emergency 

Physicians Kang & Assocs., M.D., Inc. v. United Healthcare of Fla., Inc., 526 F. 

Supp. 3d 1282, 1295 (S.D. Fla. 2021) (Dimitrouleas, J.) (citing Burgess v. 

Religious Tech. Ctr., Inc., 600 F. App’x 657, 622 (11th Cir. 2015)). Accordingly, 

while the Court must apply Rule 9(b) pleading standards, those standards are 

relaxed here where the information supporting those claims would be uniquely 

within GT Cayman’s and GT Ireland’s control, and where the scheme alleged is 

especially complex. 

Viewed with these standards in mind, the Plaintiffs undoubtedly meet 

Rule 9(b)’s requirements in pleading their negligent misrepresentation claim. 

They plead specific misrepresentations in accounting, which are listed both in 

the main body of the complaint and again in Count I. (Am. Compl. ¶¶ 92, 121.) 

They plead factual reasons why, based on their accounting work, GT Cayman 

and GT Ireland should have known those misrepresentations to be false (and 

on this particular allegation, Rule 9(b)’s requirements are at their most 

“relaxed” in this Circuit). (Id. ¶¶ 57-58, 66, 122). And they plead facts 

demonstrating that GT Cayman and GT Ireland’s accounting work was 

intended to induce and did, in fact, induce the Plaintiff’s justifiable reliance. 

(Id. ¶ 96.) Again, where this information regarding intent to induce reliance 

would be “peculiarly within” GT Cayman’s and GT Ireland’s knowledge, the 

Plaintiffs may allege that intent more generally. Noboa, 2022 WL 2191687, at 

*5. Certainly, the remainder of the Plaintiffs’ pleadings demonstrate that the 

inference of knowledge and intent to induce is reasonable here. Id. (“Accepting 

these allegations as true and construing them in the light most favorable to 

Case 1:20-cv-21808-RNS Document 85 Entered on FLSD Docket 07/11/2023 Page 21 of 23
[the plaintiff], the Court finds that his allegations give rise to reasonable 

inferences of knowledge and intent that make his claims plausible.”). 

Therefore, the Court finds Count I, for negligent misrepresentation, to 

comply with Rule 9(b)’s pleading requirements and to sufficiently state a 

plausible claim upon which relief may be granted. 

(2) The Plaintiffs allege their claims for aiding and abetting breach of 

fiduciary duty and fraud against GT Cayman and GT Ireland with 

sufficient specificity. 

The Defendants also argue that both Count II (aiding and abetting 

breach of fiduciary duty) and Count III (aiding and abetting fraud) fail to meet 

Rule 9(b)’s specify requirements. (Mot. Dismiss at 33-34.) The Plaintiffs argue 

in response that the Defendants overstate Rule 9(b)’s pleading requirements 

and that they plead sufficient specific facts for each of the elements, at any 

rate. (Resp. at 34-35.) 

A plaintiff alleging aiding and abetting breach of fiduciary duty or fraud 

under Florida law must plead “(1) an underlying violation on the part of the 

primary wrongdoer, (2) knowledge of the underlying violation by the aider and 

abettor, and (3) the rendering of substantial assistance to the wrongdoer by the 

aider and abettor.” Gevaerts v. TD Bank, N.A., 56 F. Supp. 3d 1335, 1341 (S.D. 

Fla. 2014) (Rosenberg, J.). The elements are the same for both claims. Lamm v. 

State St. Bank & Tr. Co., 889 F. Supp. 2d 1321, 1332 (S.D. Fla. 2012) 

(Ryskamp, J.), aff'd sub nom. Lamm v. State St. Bank & Tr., 749 F.3d 938 (11th 

Cir. 2014). “While the element of actual knowledge may be alleged generally, 

the plaintiff still must accompany that general allegation with allegations of 

specific facts that give rise to a strong inference of actual knowledge regarding 

the underlying fraud.” Id. (cleaned up). “Substantial assistance occurs when a 

defendant affirmatively assists, helps conceal, or fails to act when required to 

do so, thereby enabling the breach to occur.” Gevaerts, 56 F. Supp. 3d at 1342. 

The Plaintiffs plead sufficient, specific facts to demonstrate an underlying 

violation (both of fraud and fiduciary duty) by TCA Management. (Am. Compl. 

¶¶ 17, 91, 99, 134-35, 141. 159-60, 166.) The Court need not recount details 

of each allegation supporting TCA Management’s malfeasance at this point; it 

has done so more than sufficiently above. The Plaintiffs also plead sufficient, 

specific facts identifying the substantial assistance that GT Cayman and GT 

Ireland provided to cover up TCA Management’s malfeasance by failing to 

identify known issues in their audit reports and other accounting work. (Id.

¶¶ 17, 42-69, 91.) Having reviewed these specific allegations as a whole, the 

facts of this case clearly demonstrate “a strong inference of actual knowledge” 

on the part of GT Cayman and GT Ireland. Lamm, 889 F. Supp. 2d at 1332. 

Case 1:20-cv-21808-RNS Document 85 Entered on FLSD Docket 07/11/2023 Page 22 of 23
Accordingly, the Plaintiffs’ more general allegations of knowledge suffice. (Am. 

Compl. ¶¶ 90, 134-35, 140-41.) 

 4. Conclusion 

For the reasons stated above, the Court grants in part and denies in 

part the Defendants’ motion to dismiss the amended complaint. (ECF No. 58.) 

The Court dismisses the Plaintiffs’ claims against Defendants Bolder Fund 

Services (USA), LLC, and Bolder Fund Services (Cayman), Ltd. for forum non 

conveniens, albeit without prejudice. The Court dismisses the Plaintiffs’ 

claims against Defendant Grant Thornton International Ltd. for lack of 

personal jurisdiction, albeit without prejudice. The Court otherwise denies

the Defendants’ motion to dismiss. 

Done and ordered at Miami, Florida, on July 11, 2023. 

 ________________________________ 

 Robert N. Scola, Jr. 

 United States District Judge 

Case 1:20-cv-21808-RNS Document 85 Entered on FLSD Docket 07/11/2023 Page 23 of 23