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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

SOUTH BROWARD HOSPITAL 

DISTRICT, D/B/A/ MEMORIAL 

HEALTHCARE SYSTEM, 

on its own behalf and on behalf of other 

similarly situated healthcare facilities, 

Plaintiff, 

ELAP SERVICES, LLC and GROUP & 

PENSION ADMINISTRATORS, INC., 

 Defendants.

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Case No. 0:20-cv-61007-AHS

DEFENDANTS’ RESPONSE TO PLAINTIFF’S SUPPLEMENTAL AUTHORITY 

Plaintiff South Broward Hospital District d/b/a Memorial Healthcare System (“Plaintiff”) 

filed a Notice of Filing Supplemental Authority [D.E. 33 (the “Notice”)] to support its Opposition 

to Defendants’ Joint Motion to Dismiss the Amended Complaint [D.E. 31], citing the recent 

unpublished opinion in CRMsuite Corp. v. GM Co., 8:20-cv-762-T-02-WFJ-AAS, 2020 U.S. Dist. 

LEXIS 183826 (M.D. Fla. Oct. 5, 2020) (dismissing FDUTPA claim for failure to allege causation 

and damages). CRMsuite does not save Plaintiff’s legally and factually deficient FDUTPA claim. 

Citing CRMsuite, Plaintiff argues that it may sue under FDUTPA even though it did not 

consume any goods or services offered by Defendants. See Notice at 1-2. It is undisputed that a 

business may sue under FDUTPA, but it still must have been offered or sold something by the 

defendant as part of the “trade or commerce” requirement. See D.E. 32 (Defendants’ Reply 

Supporting Joint Motion to Dismiss) (“Reply”) at 3-4. The discussion of “non-consumer” standing 

in CRMsuite is dicta because the plaintiff in that case was involved in trade or commerce with the 

defendant. See 2020 U.S. Dist. LEXIS 183826, at *16-18 (“[defendant] was offering a thing of 

value (certified-vendor status) [to plaintiff] for which vendors paid a regular fee”; finding that the 

plaintiff was a “consumer”). Here, by contrast, Plaintiff was not offered or sold any service by 

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Defendants, and thus cannot sue Defendants under FDUTPA. See Reply at 3-4. 

Plaintiff next argues that it only needed to allege an injury to consumers in order to state a 

FDUTPA claim. See Notice at 2. Defendants’ Reply demonstrated that, even if non-consumers 

may sue under FDUTPA, they still must allege and prove all of the elements of a FDUTPA claim 

including an unfair or deceptive act in trade or commerce with consumers that caused an injury 

to consumers. See Reply at 6-7. While the unconvincing analysis of this issue in CRMsuite is 

reed-thin, the court found that the plaintiff alleged facts showing that defendant’s customers were 

harmed when it refused to deal with plaintiff because its customers were forced to purchase more 

expensive products from other vendors instead of the cheaper product plaintiff was barred from 

selling through defendant. 2020 U.S. Dist. LEXIS 183826, at *18. Here, however, Plaintiff failed 

to allege any facts supporting its conclusory assertions that Defendants’ customers, the healthcare 

plans, were deceived or suffered any actual harm in any way. See Reply at 6-7. 

The Notice also cites (at 2) CRMsuite’s totally overbroad and unsupported statement that 

“virtually any injury resulting from an unfair or deceptive trade practice occurring in trade or 

commerce is a ‘consumer injury.’” 2020 U.S. Dist. LEXIS 183826, at *18. That plainly is not true, 

as the court in CRMsuite dismissed the FDUTPA claim because the plaintiff only alleged 

consequential damages and failed to allege any actual damages caused by the defendant’s conduct 

vis-à-vis consumers. See id. at *19. Florida’s intermediate appellate courts have recognized that 

an entity may possess non-consumer standing, but only when it alleges an injury to actual 

consumers. Caribbean Cruise Line, Inc. v. Better Bus. Bur. of Palm Beach Cty., Inc., 169 So. 3d 

164, 169 (Fla. App. 2015). Plaintiff here likewise failed to allege facts showing that any alleged 

deceit and harm to consumers caused it to suffer actual damages. See Reply at 4-7. CRMsuite thus 

only provides more, not fewer, reasons to dismiss Plaintiff’s defective FDUTPA claim. 

Case 0:20-cv-61007-AHS Document 36 Entered on FLSD Docket 10/14/2020 Page 2 of 4
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Respectfully submitted this 14th day of October, 2020. 

FISHERBROYLES, LLP 

/s/ Irene Oria 

Robert T. Wright, Jr., Esq. 

FL Bar No. 185525 

Irene Oria, Esq. 

FL Bar No. 484570 

FisherBroyles, LLP 

199 E. Flagler St. #550 

Miami, FL 33131 

Tel.: (786) 536-2838 

Fax: (305) 536-2838 

robert.wright@fisherbroyles.com 

irene.oria@fisherbroyles.com 

Patrick M. Emery, Esq. (pro hac vice) 

GA Bar No. 821303 

PA Bar No. 306672 

Kris Alderman, Esq. (pro hac vice) 

GA Bar No. 179645 

FisherBroyles, LLP 

945 East Paces Ferry Rd NE, Suite 2000 

Atlanta, GA 30326 

(404) 793-0652 

patrick.emery@fisherbroyles.com 

kris.alderman@fisherbroyles.com 

AKERMAN LLP

Irene Bassel Frick, Esq. 

FL Bar No. 0158739 

Gera R. Peoples, Esq. 

FL Bar No. 450022 

401 E. Jackson Street, Suite 1700 

Tampa, FL 33602-5250 

Phone: (813) 223-7333 

Fax: (813) 223-2837 

irene.basselfrick@akerman.com 

gera.peoples@akerman.com 

Counsel for Defendants ELAP Services, LLC and Group & Pension Administrators, Inc.

 

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CERTIFICATE OF SERVICE

I hereby certify that on October 14, 2020, I electronically filed the foregoing with the Clerk 

of the Court by using the CM/ECF system, which will send a notice of electronic filing to the 

counsel of record identified on the Service List below. 

 /s/ Irene Oria 

 Irene Oria, Esq. 

 

SERVICE LIST 

KOZYAK TROPIN & 

THROCKMORTON LLP

Gail McQuilkin, Esq. 

Tal J. Lifshitz, Esq. 

Benjamin Jacobs Widlanski, Esq. 

Eric S. Kay, Esq. 

2525 Ponce de Leon Blvd., 9th Floor 

Coral Gables, FL 33134 

Telephone: (305) 372-1800 

Facsimile: (305) 372-3508 

gam@kttlaw.com 

tjl@kttlaw.com 

bwidlanski@kttlaw.com 

ekay@kttlaw.com 

WOLFE | PINCAVAGE 

Douglas A. Wolfe, Esq. 

Danya J. Pincavage, Esq. 

Omar Ali-Shamaa, Esq. 

2937 SW 27th Ave., Suite 302 

Miami, FL 33133 

Telephone: (786) 409-0800 

doug@wolfepincavage.com 

danya@wolfepincavage.com 

omar@wolfepincavage.com 

Counsel for Plaintiff

Case 0:20-cv-61007-AHS Document 36 Entered on FLSD Docket 10/14/2020 Page 4 of 4