UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

CASE NO. 1:20-cv-22423-UU 

PLAINTIFF SH GROUP GLOBAL IP HOLDINGS, L.L.C.’S 

OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS COMPLAINT 

SH GROUP GLOBAL IP HOLDINGS, L.L.C., 

Plaintiff, 

v. 

2399 COLLINS AVENUE CONDOMINIUM 

ASSOCIATION, INC. and JOHN P. BOSTANY, 

Defendants 

 

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TABLE OF CONTENTS 

I. INTRODUCTION............................................................................................................. 1

II. FACTUAL BACKGROUND ........................................................................................... 3

III. LEGAL STANDARD ....................................................................................................... 5

IV. ARGUMENT ..................................................................................................................... 6

A. The Motion as to the Claims Against the Association (Counts III and VI) 

Is Moot. ................................................................................................................... 6

B. SH Group Properly Pleads Breach of Contract Claims (Counts I and II) 

Against Bostany. ..................................................................................................... 7

C. SH Group Properly Pleads Tortious Interference in a Business 

Relationship (Count III) Against the Association. ................................................ 13

D. SH Group Properly Pleads a Claim for Trademark Infringement Under 

Florida Statute Section 495.001, Et Seq. (Count VI). ........................................... 15

E. SH Group Properly Pleads Claims for Trademark Infringement Under the 

Lanham Act (Counts IV and V) and Common Law (Count VII) Against 

Bostany. ................................................................................................................ 17

V. CONCLUSION ............................................................................................................... 20

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TABLE OF AUTHORITIES 

 Page(s) 

Cases 

Alhassid v. Bank of Am., N.A., 

60 F. Supp. 3d 1302 (S.D. Fla. 2014) ......................................................................................11 

Ashcroft v. Iqbal, 

556 U.S. 662 (2009) ...................................................................................................................5 

Babbit Elecs., Inc. v. Dynascan Corp., 

38 F.3d 1161 (11th Cir. 1994) .................................................................................................19 

Beck v. Lazard Freres & Co., 

175 F.3d 913 (11th Cir. 1999) ...............................................................................................7, 8 

Belen Jesuit Preparatory Sch., Inc. v. Sportswear, Inc., 

No. 1:15-CV-22194-UU, 2015 WL 12516608 (S.D. Fla. Sept. 23, 2015) (Ungaro, J.) ..........17 

Bell Atl. Corp. v. Twombly, 

550 U.S. 544 (2007) ...............................................................................................................5, 6 

Benson v. QBE Ins. Corp., 

61 F. Supp. 3d 1277 (S.D. Fla. 2014) ........................................................................................5 

BioHealth Med. Lab., Inc. v. Cigna Health & Life Ins. Co., 

706 F. App’x 521 (11th Cir. 2017) ..........................................................................................11 

Border Collie Rescue, Inc. v. Ryan, 

418 F. Supp. 2d 1330 (M.D. Fla. 2006) ...................................................................................14 

Brain Pharma, LLC v. Scalini, 

858 F. Supp. 2d 1349 (S.D. Fla. 2012) ....................................................................................17 

Brisk v. City of Miami Beach, Fla., 

709 F. Supp. 1146 (S.D. Fla. 1989) ...........................................................................................6

Chanel, Inc. v. Italian Activewear of Fla., Inc., 

931 F.2d 1472 (11th Cir. 1991) ...............................................................................................19 

Crystal Entm’t & Filmworks, Inc. v. Jurado, 

643 F.3d 1313 (11th Cir. 2001) ...............................................................................................17 

Custom Mfg. & Eng’g, Inc. v. Midway Serv., Inc., 

508 F.3d 641 (11th Cir. 2007) .................................................................................................16 

Case 1:20-cv-22423-UU Document 26 Entered on FLSD Docket 08/03/2020 Page 3 of 27
iii 

DiMase v. Aquamar 176, Inc., 

835 So. 2d 1150 (Fla. 3d DCA 2002) ......................................................................................11 

Dipietro v. City of Hialeah, 

424 F. Supp. 3d 1286 (S.D. Fla. 2020) (Altonaga, J.) ...............................................................6 

Edwards v. Prime Inc., 

602 F.3d 1276 (11th Cir. 2010) .................................................................................................5 

Fair Hous. Ctr. of the Greater Palm Beaches, Inc. v. Sonoma Bay Cmty. 

Homeowners Ass’n, Inc., 

141 F. Supp. 3d 1321 (S.D. Fla. 2015) ......................................................................................9 

Florida Int’l Univ. Bd. of Trustees v. Florida Nat’l Univ., Inc., 

91 F. Supp. 3d 1265 (S.D. Fla. 2015) ......................................................................................18 

Future Tech Int’l, Ltd. v. Tae II Media, Ltd., 

944 F. Supp. 1538 (S.D. Fla. 1996) .........................................................................................13 

Gift of Learning Found., Inc. v. TGC, Inc., 

329 F.3d 792 (11th Cir. 2003) .................................................................................................15 

Grupo Televisa, S.A. v. Telemundo Commc’ns Grp., Inc., 

485 F.3d 1233 (11th Cir. 2007) ...............................................................................................14 

Heron Dev. Corp. v. Vacation Tours, Inc., 

No. 16-20683-Civ., 2017 WL 5957743 (S.D. Fla. Nov. 30, 2017) ...................................15, 16 

Hous. Opportunities Project for Excellence, Inc. v. Key Colony No. 4 Condo. Assoc., Inc., 

510 F. Supp. 2d 1003 (S.D. Fla. 2007) ................................................................................9, 19 

Interline Brands, Inc. v. Chartis Specialty Ins. Co., 

749 F.3d 962 (11th Cir. 2014) .................................................................................................12 

Investacorp, Inc. v. Arabian Inv. Banking Corp., 

931 F.2d 1519 (11th Cir. 1991) ...................................................................................15, 16, 18 

Lee v. Amex Assurance Co., 

No. 1:16-cv-21087-UU, 2016 WL 8677915 (S.D. Fla. June 3, 2016) (Ungaro, J.) ................11 

Managed Care Sols., Inc. v. Cmty. Health Sys., Inc., 

No. 10-60170-Civ., 2011 WL 6024572 (S.D. Fla. Dec. 2, 2011) ............................................11 

Marco’s Franchising, LLC v. Marco’s Italian Express, Inc., 

No. 8:06–cv–00670–T–17–TGW, 2007 WL 2028845 (M.D. Fla. July 9, 2007) ....................16 

Pediatric Nephrology Assocs. of S. Fla. v. Variety Children’s Hosp., 

226 F. Supp. 3d 1346 (S.D. Fla. 2016) (Ungaro, J.) ................................................................13 

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Perlow v. Goldberg, 

700 So. 2d 148 (Fla. 3d DCA 1997) ........................................................................................10 

Planetary Motion, Inc. v. Techsplosion, Inc., 

261 F.3d 1188 (11th Cir. 2001) ...............................................................................................16 

Randall v. Scott, 

610 F.3d 701 (11th Cir. 2010) ...................................................................................................5 

Rosado v. Cypress at Woodmont II Condo. Ass’n, Inc., 

No. 10-61503-Civ., 2011 WL 13269719 (S.D. Fla. Jan. 6, 2011) .............................................9 

Rudnick v. Sears, Roebuck & Co., 

358 F. Supp. 2d 1201 (S.D. Fla. 2005) ....................................................................................13 

Sabal Palm Condos. of Pine Island Ridge Ass’n, Inc. v. Fischer, 

No. 12-60691-Civ., 2014 WL 988767 (S.D. Fla. Mar. 13, 2014) .............................................9 

Skrtich v. Thornton, 

280 F.3d 1295 (11th Cir. 2002) .............................................................................................6, 7 

Sonny Boy, L.L.C. v. Asnani, 

879 So. 2d 25 (Fla. 5th DCA 2004) .........................................................................................10 

Tally-Ho, Inc. v. Coast Community College District, 

889 F.2d 1018 (11th Cir. 1989). ........................................................................................16, 17 

Tana v. Dantanna’s, 

611 F. 3d 767 (11th Cir. 2010) ................................................................................................17 

Tellabs, Inc. v. Makor Issues & Rights, Ltd., 

551 U.S. 308 (2007) ...................................................................................................................5 

Tello v. Grosfillex, Inc., 

No. 09-60399-Civ., 2009 WL 10699892 (S.D. Fla. July 2, 2009) (Ungaro, J.) ....................5, 6 

Torremar Condo. Ass’n, Inc. v. Great Am. Ins. Co., 

No. 15-60839-Civ., 2015 WL 11198246 (S.D. Fla. July 9, 2015) ..........................................11 

TracFone Wireless, Inc. v. Narula, 

No. 07-22202-Civ., 2008 WL 11407177 (S.D. Fla. Jan. 10, 2008) .........................................19 

West v. Warden, Comm’r, Ala. Doc, 

869 F.3d 1289 (11th Cir. 2017) .................................................................................................5 

Whitley v. Royal Trails Prop. Owners’ Ass’n, Inc., 

910 So. 2d 381 (Fla. 5th DCA 2005) .......................................................................................12 

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Wholesale Stone, LLC v. Stone-Mart Marble & Travertine Grp. LLC, 

No. 13-24342-Civ., 2014 WL 11906611 (S.D. Fla. Mar. 10, 2014) .......................................19 

Statutes 

15 U.S.C. § 1114 ........................................................................................................................3, 17 

15 U.S.C. § 1125 ........................................................................................................................3, 17 

Fla. Stat. § 495.001 ........................................................................................................................15 

Fla. Stat. § 495.131 ..............................................................................................................2, 15, 16 

Fla. Stat. § 495.181 ........................................................................................................................15 

Fla. Stat. § 617.0834 ........................................................................................................8, 9, 10, 19 

Rules 

Fed. R. Civ. P. 8 ...........................................................................................................................5, 6 

Fed. R. Civ. P. 12 ...............................................................................................................1, 5, 6, 11 

Local Rule 7.1 ..................................................................................................................................1 

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Pursuant to Federal Rule of Civil Procedure 12(b)(6) and Local Rule 7.1, Plaintiff SH 

Group Global IP Holdings, L.L.C. (“SH Group”) hereby responds in opposition to the Motion to 

Dismiss (“Motion”) of Defendants 2399 Collins Avenue Condominium Association, Inc. (the 

“Association”) and John P. Bostany (“Bostany”) (collectively, “Defendants”) (D.E. 22 (“Mot.”)), 

and respectfully requests that the Motion be denied. 

I. INTRODUCTION 

Through their Motion, Defendants attempt to ignore the clear allegations of the 

Complaint and case law in order to sidestep liability. But there is nothing in Defendants’ Motion 

that warrants the dismissal under Federal Rule of Civil Procedure 12(b)(6) of any of SH Group’s 

claims. 

First, as a threshold matter, Defendants’ Motion as to Counts III (Tortious Interference in 

a Business Relationship) and VI (Florida State Trademark Infringement) is moot as to the 

Association. Because the Association subsequently filed an Answer to all claims in the 

Complaint (D.E. 23 (“Answer”)), the Motion as to the Association is deemed moot under 

applicable law. 

Second, Bostany cannot avoid liability for his own actions, as the Complaint properly 

pleads his contractual breaches. The Complaint details that Bostany signed multiple contracts 

that obligated him to not (1) use any trademark or trade name of SH Group for any purpose, or 

(2) interfere with or contest SH Group’s trademarks or other intellectual property. (D.E. 1 

(“Compl.”) ¶¶ 26–43.) As the Complaint states, he breached those obligations by (1) using the 

marks 1 HOTELS and 1 HOMES in both his personal capacity and by causing the Association’s 

infringing use, and (2) directing, controlling, and/or inducing the Association to attempt to 

register 1 HOMES with the United States Patent and Trademark Office (“USPTO”) and to 

attempt to cancel the valuable trademark registrations of SH Group. (Id. ¶¶ 44–57.) The law is 

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clear that the mere fact that Bostany is the President of the Board of Directors of the Association 

does not excuse him from liability for his own contractual breaches. Accordingly, Defendants’ 

Motion as to Count I (Breach of the Purchase Agreement) and Count II (Breach of the Buyer’s 

Acknowledgement) should be denied. 

Third, Defendants’ procedurally mooted arguments against the tortious interference 

claim against the Association are otherwise misplaced and wrong. Despite Defendants’ 

conclusory argument that the Complaint does not allege contractual breaches by Bostany or a 

business relationship between Bostany and SH Group, SH Group properly pleads each of the 

requisite elements of tortious interference against the Association. (Id. ¶¶ 78–82.) Under Florida 

law, a contractual breach (or even a valid contract) is not required for a tortious interference 

claim—a separate and independent tort which is not dependent on a contractual breach. 

Moreover, although not required for the tortious interference claim against the Association, SH 

Group also alleges breach of contract claims against Bostany. (Id. ¶¶ 58–77.) Defendants’ 

Motion as to Count III of the Complaint (Tortious Interference of a Business Relationship) 

should thus be denied. 

Fourth, Count VI for trademark infringement under Florida state law also should not be 

dismissed. Contrary to Defendants’ claim, Section 495.131 of the Florida Statutes does not 

require that SH Group own a Florida state trademark registration. Rather, the Florida Trademark 

Act, as well as decisions by the Eleventh Circuit and lower courts reflect that a federal 

registration (which SH Group alleges it owns (id. ¶ 21)) satisfies the statute and that its 

protection is coextensive with the federal Lanham Act. Accordingly, Defendants’ Motion as to 

Count VI (Trademark Infringement Under Florida Statutes) of the Complaint should be denied. 

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Fifth, Defendants’ Motion as to the federal and common law trademark infringement 

claims against Bostany also fails. SH Group alleges that Bostany personally has used the 1 

HOTELS and 1 HOMES marks, and thus has infringed SH Group’s trademark rights. (Id. ¶ 54.) 

SH Group also alleges that Bostany is liable for trademark infringement for the separate and 

independent reason that, as noted above, he directed, controlled, and/or induced the 

Association’s infringement of SH Group’s trademarks. (Id. ¶¶ 4, 46–53.) Thus, under Eleventh 

Circuit law, Bostany is personally liable, regardless of his role as the board president of a nonprofit condominium association. Accordingly, Defendants’ Motion as to Count IV (Trademark 

Infringement Under 15 U.S.C. § 1114), Count V (False Designation of Origin Under 15 U.S.C. 

§ 1125(a)), Count VII (Common Law Trademark Infringement), and Count VIII (Common Law 

Unfair Competition) of the Complaint as to Bostany should be denied. 

II. FACTUAL BACKGROUND 

SH Group alleges that this dispute arises from Defendants’ calculated infringement of 

and interference with SH Group’s trademarks. (Id. ¶¶ 1–6.) SH Group alleges that it is the 

operator of renowned hotel and condominium properties, including the 1 HOTEL & HOMES 

brand of hotels and residences, which includes the 1 Hotel & Homes South Beach property in 

Miami Beach, Florida. (Id. ¶¶ 15–16, 33, 39.) As reflected in the Complaint, SH Group is an 

affiliate of global private investment firm Starwood Capital Group, the force behind some of the 

most recognizable and innovative hotel brands in the world, such as Westin Hotels & Resorts, W 

Hotels, Sheraton, The St. Regis, and Le Méridien. (Id. ¶ 15.) SH Group alleges ownership of a 

broad family of valuable “1” trademarks, based on both common law rights and federal 

registrations (many of which are incontestable), related to its 1 HOTELS and 1 HOTEL & 

HOMES resort and residence properties. (Id. ¶¶ 1, 19–21, Ex. A.) The Complaint pleads that 

SH Group’s trademarks include dozens of federal registrations that begin with and prominently 

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feature the term “1” and three registrations that also include the term “HOME(S).” (Id.; see also

D.E. 21 (“Joint Rep.”) at 3 (stipulating to SH Group’s ownership of federal registrations).) SH 

Group also alleges that it has used, and owns trademark rights to, 1 HOMES. (Compl. ¶¶ 1, 20.) 

In 2014, in connection with purchasing a condominium at SH Group’s 1 Hotel & Homes 

South Beach property, Bostany allegedly signed the Purchase Agreement and Buyer’s 

Acknowledgement. (Id. ¶¶ 26, 41.) SH Group alleges that the Purchase Agreement incorporates 

by reference the Declaration of Condominium, Resort Covenants, and Prospectus (collectively, 

with the Buyer’s Acknowledgement, the “Agreements”). (Id. ¶¶ 31–32, 35, 38.) The Complaint 

also states that all condominium owners, like Bostany, are bound by the Agreements. (Id. ¶¶ 3, 

41.) SH Group alleges that by signing the Agreements, Bostany agreed that: (1) neither he nor 

the Association had any right to any aspect of SH Group’s intellectual property (id. ¶¶ 28–29, 

39); (2) he had no right to use any trademark or trade name of SH Group for any purpose (id. ¶¶ 

33, 36); and (3) he would not interfere with or contest SH Group’s trademarks or other 

intellectual property (id. ¶ 42). 

Despite these clear contractual obligations, SH Group alleges that Bostany caused the 

Association to use the mark 1 HOMES in connection with condominium management services 

and merchandise, to attempt to register 1 HOMES before the USPTO, and to attempt to cancel 

three of SH Group’s trademark registrations related to its 1 HOTEL & HOMES brand. (Id. ¶¶ 

44–57.) As reflected in the Complaint, Bostany also used the 1 HOTELS and 1 HOMES marks 

(including SH Group’s 1 HOTELS logo) to publicly, misleadingly and falsely advertise himself 

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as being a board member or executive of SH Group. (Id. ¶¶ 44, 54.) SH Group also alleges that 

Defendants have refused to cease their infringing and breaching behavior.1 (Id. ¶ 5, 47.) 

III. LEGAL STANDARD 

In deciding a Rule 12(b)(6) motion to dismiss for failure to state a claim, “the Court 

considers only the four corners of the complaint.” Benson v. QBE Ins. Corp., 61 F. Supp. 3d 

1277, 1279 (S.D. Fla. 2014) (citing Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 

322 (2007)); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Edwards v. Prime Inc., 602 

F.3d 1276, 1291 (11th Cir. 2010). A court must “accept as true the facts as set forth in the 

complaint and draw all reasonable inferences in the plaintiff’s favor.” West v. Warden, Comm’r, 

Ala. Doc, 869 F.3d 1289, 1296 (11th Cir. 2017) (quoting Randall v. Scott, 610 F.3d 701, 705 

(11th Cir. 2010)) (internal quotation marks omitted). 

In order to “[t]o survive a motion to dismiss, a complaint must contain sufficient factual 

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. 

at 678 (quoting 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.” Tello v. Grosfillex, Inc., No. 

09-60399-Civ., 2009 WL 10699892, at *1 (S.D. Fla. July 2, 2009) (Ungaro, J.) (citing Twombly, 

550 U.S. at 570). Rule 8 of the Federal Rules of Civil Procedure does not require “detailed 

factual allegations,” but rather only requires “more than labels and conclusions” or a “formulaic 

1

 Defendants’ statements in the “Background” section of the Motion regarding the cancellation 

proceeding are entirely irrelevant to the Motion. (Mot. at 1–2.) Regardless, as the Complaint 

states, SH Group promptly expressed its concerns regarding Defendants’ infringement. 

(Compl. ¶¶ 5, 47.) Far from a “strike suit brought by Plaintiff in retaliation” for the 

Association’s subsequently filed cancellation petition (Mot. at 1), this suit seeks to address 

Defendants’ willful infringement and breaches, which SH Group has attempted to resolve 

amicably but to no avail, as reflected in the Complaint (e.g., Compl. ¶¶ 1–6). 

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recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. The Court decides 

whether a complaint should survive a motion to dismiss based on a “liberal standard,” and a 

complaint may be facially plausible even where it imposes liability on the defendants in a 

“conclusory fashion.” Tello, 2009 WL 10699892, at *1. 

IV. ARGUMENT 

SH Group’s Complaint easily meets the pleading standard required by Rule 8 and states 

each claim for relief against Defendants. For the reasons discussed below, each of Defendants’ 

arguments fails and the Court should deny the Motion outright. 

A. The Motion as to the Claims Against the Association (Counts III and VI) Is 

Moot. 

Defendants’ Motion as to the claims against the Association should be deemed moot 

because the Association filed an Answer to the Complaint as to such claims. (See generally 

Answer.) As the Court has noted, “[a] motion to dismiss challenges the sufficiency of the 

allegations within the complaint; an answer admits or denies those allegations and raises any 

available affirmative defenses.” Brisk v. City of Miami Beach, Fla., 709 F. Supp. 1146, 1147 

(S.D. Fla. 1989); see also Skrtich v. Thornton, 280 F.3d 1295, 1306 (11th Cir. 2002) (finding that 

a 12(b) motion to dismiss “would have been inappropriate” where the answer was already filed); 

Fed. R. Civ. P. 12(a)(4)(A) (stating where a Rule 12 motion is filed, a responsive pleading “must 

be served within 14 days” after the court’s decision on such motion). Therefore, the filing of an 

answer before the court has ruled on the defendant’s Rule 12 motion renders such motion moot. 

Brisk, 709 F. Supp. at 1147. 

Here, subsequent to filing the Motion, the Association filed its Answer as to all claims, 

including Counts III and VI. (Answer ¶¶ 78–82, 99–107.) Accordingly, the Motion as to the 

Association is moot and should therefore be denied. See Dipietro v. City of Hialeah, 424 F. 

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Supp. 3d 1286, 1290 n.2 (S.D. Fla. 2020) (Altonaga, J.) (quoting Skrtich, 280 F.3d at 1306) 

(acknowledging that it would be inappropriate for a party that had filed a responsive pleading to 

also be party to a concurrently pending motion to dismiss). 

B. SH Group Properly Pleads Breach of Contract Claims (Counts I and II) 

Against Bostany. 

As reflected in the Complaint, by executing the Agreements, Bostany agreed that: (1) 

neither he nor the Association had any right to any aspect of SH Group’s intellectual property; 

(2) he had no right to use any trademark or trade name of SH Group for any purpose; and (3) he 

would not interfere with or contest SH Group’s trademarks or other intellectual property. 

(Compl. ¶¶ 25–43.) Defendants argue that the Complaint fails to “provide any allegation that 

may serve as a basis to hold Mr. Bostany personally liable for the actions taken by the 

Association or by Mr. Bostany in his role as President of the Association’s Board of Directors.” 

(Mot. at 4.) Defendants’ argument misstates, or Defendants misapprehend, the factual 

allegations contained in the Complaint as well as the relevant legal standards. 

Contrary to Defendants’ confused assertions, the Complaint properly pleads two claims 

for breach of contract against Bostany with respect to the Agreements: Count I as to the Purchase 

Agreement (and agreements incorporated by reference) and Count II as to the Buyer’s 

Acknowledgement. A breach of contract claim under Florida law requires three elements: “(1) a 

valid contract; (2) a material breach; and (3) damages.” Beck v. Lazard Freres & Co., 175 F.3d 

913, 914 (11th Cir. 1999) (per curiam). In its Complaint, SH Group alleges (1) the existence and 

validity of the Agreements, to which Bostany is a party (Compl. ¶¶ 26–43, 59–65, 72–73); (2) 

the breach of the Agreements by Bostany, a party to the Agreements (id. ¶¶ 44–54, 66–67); and 

(3) damages to SH Group relating to Bostany’s breach of the Agreements (id. ¶¶ 68, 76). 

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In the Motion, Defendants do not challenge the validity of the Agreements. Bostany’s 

breaches, SH Group alleges, were made in his individual capacity, by virtue of his own conduct. 

(Id. ¶¶ 66, 74.) SH Group alleges that Bostany personally used the 1 HOTELS and 1 HOMES 

marks (id. ¶ 54), and that he directed, controlled, and/or induced the Association’s infringement, 

filing of trademark applications (one of which Bostany himself signed), and attempt to cancel SH 

Group’s trademark registrations (id. ¶¶ 44–53). As the Complaint alleges, these actions are 

directly contrary to, and a material breach of, Bostany’s obligations under the Purchase 

Agreement and agreements it incorporates by reference. (Id. ¶¶ 26–40, 66–67.) For instance, 

SH Group alleges that Bostany agreed that (1) neither he nor the Association “have any right, 

title or interest” to any “aspect of the Hotel Brand Intellectual Property”; and (2) he does not 

“have the right, license or ability . . . to use for any purpose . . . any trade name, trademark or 

service mark associated with the Hotel or the operator thereof.” (Id. ¶¶ 28–29, 33, 36, 39.) 

Bostany’s alleged actions also are directly contrary to, and thus SH Group properly pleads a 

material breach of, his obligations under the Buyer’s Acknowledgement, which states that he 

“shall not interfere with or contest [SH Group’s] rights in and to the Brand Trademarks.” (Id. ¶¶ 

41–43, 74–75.) SH Group alleges that it has been damaged by these actions as Bostany’s 

breaches have, for instance, impaired the value of SH Group’s trademarks and the goodwill 

associated therewith and forced SH Group to incur the expense of defending its rights. (Id. ¶¶ 

68, 76.) Thus, SH Group properly pleads breach of contract claims against Bostany under 

Florida law. See Beck, 175 F.3d at 914. 

Despite these clear allegations of Bostany’s contractual breaches, Defendants contend 

that Bostany cannot be held personally liable because he is the Association’s Board President. 

Defendants cite Section 617.0834 of the Florida Statutes as well as two cases, each of which are 

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inapplicable. With respect to the statute, Section 617.0834, by its own explicit terms, immunizes 

a condominium association board member in a narrow circumstance, when the member is sued 

for “any statement, vote, decision, or failure to take an action, regarding organizational 

management or policy by an officer.” § 617.0834(1), Fla. Stat. Here, in contrast, SH Group 

alleges that Bostany affirmatively breached his own contractual obligations owed to SH Group 

and that his tortious acts against SH Group and willful infringement of its intellectual property 

are distinct from his fiduciary duties relating to the “organizational management or policy” of the 

Association. (Compl. ¶¶ 3, 44, 46, 54, 57, 66, 74.) Indeed, Florida federal courts have routinely 

rejected Bostany’s argument to the contrary and have expressly found that Section 617.0834 

does not insulate board members or officers from liability for their own violations of federal 

statutes and tortious conduct. See, e.g., Hous. Opportunities Project for Excellence, Inc. v. Key 

Colony No. 4 Condo. Assoc., Inc., 510 F. Supp. 2d 1003, 1013–14 (S.D. Fla. 2007) (“section 

617.0834, a state statute, cannot be applied to bar Plaintiffs’ federal cause of action”); see also 

Fair Hous. Ctr. of the Greater Palm Beaches, Inc. v. Sonoma Bay Cmty. Homeowners Ass’n, 

Inc., 141 F. Supp. 3d 1321, 1325 (S.D. Fla. 2015) (finding that “traditional common law 

principles of vicarious liability apply to” tort claims arising from violations of federal statute, 

and that aggrieved plaintiffs can assert claims against individual defendants who engaged in 

affirmative tortious acts even if acting as agents for or at the command of a principal); Sabal 

Palm Condos. of Pine Island Ridge Ass’n, Inc. v. Fischer, No. 12-60691-Civ., 2014 WL 988767, 

at *4 (S.D. Fla. Mar. 13, 2014) (“§ 617.0834, a state statute, cannot bar a claim under the FHA, a 

federal cause of action”) (internal citation omitted); Rosado v. Cypress at Woodmont II Condo. 

Ass’n, Inc., No. 10-61503-Civ., 2011 WL 13269719, at *3 (S.D. Fla. Jan. 6, 2011). Thus, 

Bostany is not insulated from liability for his own affirmative acts—including his alleged 

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personal use of the 1 HOTELS and 1 HOMES marks and his direction, control and/or 

inducement of the Association’s infringement and interference with SH Group’s trademarks—

simply because he is a board officer. Nor is SH Group required to plead that Bostany engaged in 

“fraud, criminal activity, self-dealing, unjust enrichment” or the like (Mot. at 5) as the statute 

simply does not apply to the allegations against Bostany in the well-pled causes of action in this 

case. 

The two cases relied upon by Defendants are similarly inapposite and only confirm that 

Section 617.0834 does not apply here. (Id., citing Perlow v. Goldberg, 700 So. 2d 148, 150 (Fla. 

3d DCA 1997); Sonny Boy, L.L.C. v. Asnani, 879 So. 2d 25, 27–28 (Fla. 5th DCA 2004)). Both 

Perlow and Sonny Boy involved claims by condominium owners against individual board 

members for their alleged mismanagement of the respective condominium association’s affairs. 

Those cases dealt with precisely the type of failure-to-properly-manage allegations that Section 

617.0834 was designed to address, which are not at issue here. Indeed, Perlow noted that the 

statute is intended “to shield condominium association directors from individual liability in 

instances of negligent management.” Perlow, 700 So. 2d at 150. Similarly, Sonny Boy dealt 

with allegations that the officer “failed to cause the condominium association to maintain and 

repair specifically alleged items of common elements.” Sonny Boy, L.L.C., 879 So. 2d at 27–28. 

Such allegations and claims are not present in this case. Rather, Counts I and II relate to 

Bostany’s own contractual obligations to SH Group and affirmative breaches thereof.2

 

2

 Defendants’ assertion that Bostany’s actions and contracts do not bind the Association and 

thus that Counts I and II should be dismissed is misplaced. (Mot. at 5.) Counts I and II are 

asserted as to Bostany only (Compl. ¶¶ 58–67); whether the Association is bound is 

irrelevant. 

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Finally, with respect to Count I (Breach of the Purchase Agreement), Defendants argue 

that even if Bostany could be held liable for his breaches, the claim substantively fails because 

“1 HOMES is not one of the trademarks [explicitly] identified” in the Purchase Agreement and 

agreements it incorporates by reference. (Mot. at 7.) As a preliminary matter, such a meritsbased argument is wholly inappropriate on a Rule 12(b)(6) motion as courts do not consider 

issues of contract interpretation at the motion to dismiss stage. See, e.g., BioHealth Med. Lab., 

Inc. v. Cigna Health & Life Ins. Co., 706 F. App’x 521, 524 (11th Cir. 2017) (“It was improper 

for the district court to interpret the contract when considering the motion to dismiss.”); Lee v. 

Amex Assurance Co., No. 1:16-cv-21087-UU, 2016 WL 8677915, at *3 (S.D. Fla. June 3, 2016) 

(Ungaro, J.) (contractual ambiguities “hinge on factual determinations that the Court cannot 

resolve on a motion to dismiss”); Alhassid v. Bank of Am., N.A., 60 F. Supp. 3d 1302, 1312 (S.D. 

Fla. 2014) (“Contract interpretation is typically inappropriate at the motion to dismiss stage.”); 

Managed Care Sols., Inc. v. Cmty. Health Sys., Inc., No. 10-60170-Civ., 2011 WL 6024572, at 

*6 (S.D. Fla. Dec. 2, 2011) (finding that if a contract’s terms are susceptible to multiple 

meanings, this issue “should be decided at the summary judgment stage and the motion to 

dismiss on this basis should be denied”). Defendants’ citation to DiMase v. Aquamar 176, Inc., 

835 So. 2d 1150, 1155 (Fla. 3d DCA 2002) (Mot. at 7), is inapposite as it addressed a motion for 

summary judgment interpreting a contract, not a motion to dismiss. 

Regardless, Defendants’ narrow reading of the Purchase Agreement and related 

agreements is contrary to black-letter law regarding contract interpretation, as well as the 

contracts’ plain terms and the allegations of the Complaint. Under Florida law, a contract should 

be interpreted “consistent with reason, probability, and the practical aspect of the transaction 

between the parties.” Torremar Condo. Ass’n, Inc. v. Great Am. Ins. Co., No. 15-60839-Civ., 

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2015 WL 11198246, at *2 (S.D. Fla. July 9, 2015) (quoting Whitley v. Royal Trails Prop. 

Owners’ Ass’n, Inc., 910 So. 2d 381, 383 (Fla. 5th DCA 2005)); see also Interline Brands, Inc. v. 

Chartis Specialty Ins. Co., 749 F.3d 962, 966 (11th Cir. 2014) (interpretation that is “consistent 

with reason and probability” should be adopted) (internal quotations and citation omitted). 

Here, if the Court considers Defendants’ improper merits argument, it should find that the 

only reasonable interpretation of the Purchase Agreement and related agreements is that Bostany 

broadly and generally agreed not to use or claim ownership to SH Group’s 1 HOTEL & HOMES 

family of trademarks, which includes 1 HOMES, as the Complaint states. (Compl. ¶¶ 1, 20–21, 

26–40.) As reflected in the Complaint, by signing the Purchase Agreement, Bostany agreed that 

neither he nor the Association had any right, title, ownership or interest in SH Group’s 1 HOTEL 

& HOMES family of marks, and thus that he would not use or induce the Association to use or 

claim ownership of any trademark or service mark of SH Group. (Id. ¶¶ 28–29, 33, 36, 39, 69.) 

For instance, SH Group alleges that Bostany agreed that he would not “use for any purpose . . . 

any trade name, trademark or service mark associated with the Hotel or the operator thereof.” 

(Id. ¶¶ 33, 36.) Similarly, the Complaint alleges that Bostany agreed that he would have “no 

right, title or interest in . . . the marks, logos, or other trademarks, service marks, trade names, 

symbols, emblems, logos, insignias, indicia of origin, slogans and designs used in connection 

with ‘1 Hotel’ or ‘1 Hotel & Residences[.]’” (Id. ¶ 29.) SH Group alleges ownership of a broad 

family of “trademarks that contain the number ‘1,’” including use of and rights to 1 HOMES. 

(Id. ¶¶ 1, 20–21.) Thus, SH Group properly pleads that Bostany has breached his contractual 

obligations under the Purchase Agreement and incorporated agreements, pursuant to Count I. 

For the foregoing reasons, Defendants’ Motion as to Counts I and II should be denied. 

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C. SH Group Properly Pleads Tortious Interference in a Business Relationship 

(Count III) Against the Association. 

Defendants’ only argument to dismiss the tortious interference claim against the 

Association is that the Complaint fails to allege a breach of any agreement by Bostany or a 

business relationship between Bostany and SH Group. (Mot. at 7–8.) Defendants do not cite to 

case law or other support for this contention, and their arguments are contrary to both the factual 

allegations in the Complaint as well as the applicable law. 

As this Court has recognized, “[u]nder Florida law, a plaintiff must establish the 

following five elements to state a claim for tortious interference with an advantageous business 

relationship: (1) the existence of a business relationship under which the claimant has rights; (2) 

the defendant’s knowledge of the relationship; (3) an intentional and unjustified interference with 

the relationship; (4) by a third party; and (5) damage to the claimant cause by the interference.” 

Pediatric Nephrology Assocs. of S. Fla. v. Variety Children's Hosp., 226 F. Supp. 3d 1346, 

1357–58 (S.D. Fla. 2016) (Ungaro, J.) (citing Rudnick v. Sears, Roebuck & Co., 358 F. Supp. 2d 

1201 (S.D. Fla. 2005) (citing Future Tech Int'l, Ltd. v. Tae II Media, Ltd., 944 F. Supp. 1538, 

1569 (S.D. Fla. 1996)). With regard to the first element, the Complaint alleges the existence of a 

business relationship between SH Group and Bostany because Bostany owns a unit at SH 

Group’s 1 Hotel & Homes South Beach property and SH Group is a third-party beneficiary of 

the Agreements. (Compl. ¶¶ 2, 25–44, 61–64.) Second, the Complaint alleges the Association is 

aware of the business relationship between Bostany and SH Group. (Id. ¶ 80.) Third and fourth, 

the Complaint alleges that the Association, a third party to the business relationship between SH 

Group and Bostany, intentionally and unjustifiably interfered with SH Group’s business 

relationship with Bostany, including by infringing SH Group’s trademarks by adopting, using, 

and applying to register the 1 HOMES mark (id. ¶¶ 45–53, 81), as well as by petitioning to 

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cancel SH Group’s trademark registrations (id. ¶¶ 55–56). Finally, the Complaint alleges that 

SH Group has been damaged as a result of the Association’s interference with its business 

relationship with Bostany, including by impairing the value of SH Group’s trademarks, 

reputation, and goodwill. (Id. ¶¶ 6, 68, 76, 82.) Thus, the Complaint pleads all five elements of 

a tortious interference claim. 

Defendants’ argument that the tortious interference claim “necessarily fail[s]” because 

Bostany has not breached the Agreements is misplaced. (Mot. at 7.) As a preliminary matter, as 

discussed above in Section IV.B, SH Group pleads breach of contract claims against Bostany. 

Regardless, such breaches are not required for the tortious interference claim against the 

Association. As the Eleventh Circuit has stated, “the terms of the underlying contract and the 

parties’ expectations should have little bearing on the law that governs third party interference in 

that contract.” Grupo Televisa, S.A. v. Telemundo Commc’ns Grp., Inc., 485 F.3d 1233, 1243 

(11th Cir. 2007). Accordingly, “under Florida law, a plaintiff can maintain a cause of action 

against a third party for tortious interference in a contract even though he might not be able to 

enforce the underlying contract.” Id. (citing Border Collie Rescue, Inc. v. Ryan, 418 F. Supp. 2d 

1330, 1344 (M.D. Fla. 2006)). Thus, the court found in Border Collie Rescue that even if the 

contract at issue were unenforceable, there still could be a tortious interference claim against the 

party that interfered with the obligations under that contract. 418 F. Supp. 2d at 1344. 

Accordingly, the court denied the defendant’s motion for summary judgment, finding a genuine 

issue of material fact. Id.; see also Grupo Televia, 485 F.3d at 1244 (reversing summary 

judgment for defendant and holding that tortious interference claim could be maintained even 

where plaintiff was “not seeking to enforce its contract rights . . . under Florida law”). Here, 

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accepting all allegations in the Complaint as true, Defendants’ Motion as to Count III of the 

Complaint for tortious interference against the Association should be denied. 

D. SH Group Properly Pleads a Claim for Trademark Infringement Under 

Florida Statute Section 495.001, Et Seq. (Count VI). 

Defendants argue that Count VI for trademark infringement under Florida state law 

should be dismissed because SH Group has not alleged ownership of a Florida state trademark 

registration. (Mot. at 8–9.) Such argument is misplaced as ownership of a federal registration, 

which SH Group alleges (Compl. ¶ 21, Ex. A), and to which Defendants have stipulated (Joint 

Rep. at 3), is sufficient. “To determine the validity of a trademark infringement claim [under 

Section 495.131, Florida Statutes], the Florida Legislature instructs courts to assess the claim 

under federal law.” Heron Dev. Corp. v. Vacation Tours, Inc., No. 16-20683-Civ., 2017 WL 

5957743, at *12 (S.D. Fla. Nov. 30, 2017). Florida state trademark law provides “protection 

substantially consistent with the federal system of trademark registration and protection.” 

§ 495.181, Fla. Stat.; see also id. (“the construction given the federal act should be examined as 

persuasive authority for interpreting and construing this chapter”); Gift of Learning Found., Inc. 

v. TGC, Inc., 329 F.3d 792, 802 (11th Cir. 2003) (citing Investacorp, Inc. v. Arabian Inv. 

Banking Corp., 931 F.2d 1519, 1521 (11th Cir. 1991) for the proposition that “the analysis of the 

Florida statutory and common law claims of trademark infringement and unfair competition is 

the same as under the federal trademark infringement claim”) (per curiam). Accordingly, 

contrary to Defendants’ argument, ownership of a federal registration satisfies the statutory 

requirement that plaintiff own a registration “under this chapter.” § 495.131, Fla. Stat. 

In Heron Development Corp., this Court partially denied a motion to dismiss where the 

plaintiffs did not own Florida state trademark registrations but one of two plaintiffs owned 

federal trademark registrations. 2017 WL 5957743, at *12. Defendants’ argument that a state 

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registration is required to state a claim under the Florida statute (Mot. 9) is directly contrary to 

the holding in Heron Development Corp. There, like here, because a plaintiff “stated a valid 

trademark infringement claim under the Lanham Act,” it “likewise states a valid claim for 

trademark infringement under § 495.131 of the Florida Trademark Act.” Id. at *12 (citing 

Custom Mfg. & Eng’g, Inc. v. Midway Serv., Inc., 508 F.3d 641, 652 (11th Cir. 2007) (stating 

that because Florida trademark infringement and unfair competition law is the same as federal 

law, a court can use federal law analysis to evaluate the merits of the Florida claim)); see also 

Planetary Motion, Inc. v. Techsplosion, Inc., 261 F.3d 1188, 1193 n.4 (11th Cir. 2001) (“Courts 

may use an analysis of federal infringement claims as a ‘measuring stick’ in evaluating the 

merits of state law claims of unfair competition.”); Investacorp, 931 F.2d at 1521; Marco’s 

Franchising, LLC v. Marco’s Italian Express, Inc., No. 8:06–cv–00670–T–17–TGW, 2007 WL 

2028845 at *3 (M.D. Fla. July 9, 2007) (analyzing the plaintiff’s FDUTPA claim simultaneously 

with the plaintiff’s Lanham Act claim because the former is “derivative of” the latter). 

Here, the Complaint alleges, and Defendants have stipulated to, SH Group’s ownership 

of dozens of federal trademark registrations for its “1” family of marks. (Compl. ¶ 21, Ex. A; 

Joint Rep. at 3.) The Complaint also alleges trademark infringement claims under the Lanham 

Act against both Defendants. (Compl. ¶¶ 83–91.) Such allegations support Count VI for 

trademark infringement under Florida state law as well. See Heron Dev. Corp., 2017 WL 

5957743 at *12. 

Defendants’ sole citation to the 1989 case Tally-Ho, Inc. v. Coast Community College 

District does not change this result. (Mot. at 9.) Tally-Ho involved a plaintiff seeking to bring 

federal and state trademark infringement claims where, unlike here, it had no federal trademark 

registrations or applications. 889 F.2d 1018, 1021 (11th Cir. 1989). The court merely held that 

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“[c]ommon law owners of unregistered marks are limited to common law remedies in 

infringement actions,” and said nothing with regard to actions under Florida law involving 

federal trademark registrations. Id. at 1024. Thus, Defendants’ Motion as to Count VI of the 

Complaint should be denied. 

E. SH Group Properly Pleads Claims for Trademark Infringement Under the 

Lanham Act (Counts IV and V) and Common Law (Count VII) Against 

Bostany. 

Defendants argue that the Complaint fails to “provide any allegation” that Bostany 

infringed SH Group’s trademarks in his individual capacity or could be held liable for the 

Association’s infringement. (Mot. at 9.) That is both factually and legally wrong. The 

Complaint properly alleges trademark infringement claims against Bostany under federal and 

common law in his individual capacity given his own use of the 1 HOTELS and 1 HOMES 

marks as well as his direction, control, and/or inducement of the Association’s infringement. 

(Compl. ¶¶ 45–54, 83–91.) 

“To establish a prima facie case for trademark infringement, ‘a plaintiff must show (1) 

that the plaintiff had enforceable . . . rights in the mark or name, and (2) that the defendant made 

unauthorized use of it such that consumers were likely to confuse the two.’” Belen Jesuit 

Preparatory Sch., Inc. v. Sportswear, Inc., No. 1:15-cv-22194-UU, 2015 WL 12516608, at *3 

(S.D. Fla. Sept. 23, 2015) (Ungaro, J.) (citing Brain Pharma, LLC v. Scalini, 858 F. Supp. 2d 

1349, 1352-53 (S.D. Fla. 2012)); Crystal Entm’t & Filmworks, Inc. v. Jurado, 643 F.3d 1313, 

1321 (11th Cir. 2001). “The factors relevant to establishing [a likelihood of confusion with 

respect to false designation of origin under 15 U.S.C. § 1125(a)] are identical to the factors 

relevant to establishing a likelihood of confusion with respect to trademark infringement under 

15 U.S.C. § 1114.” Tana v. Dantanna’s, 611 F. 3d 767, 773 n.5 (11th Cir. 2010) (modification 

in original). Similarly, the test for trademark infringement under common law is the same as for 

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federal trademark infringement in the Eleventh Circuit. Florida Int’l Univ. Bd. of Trustees v. 

Florida Nat’l Univ., Inc., 91 F. Supp. 3d 1265, 1288 (S.D. Fla. 2015) (citing Investacorp, 931 

F.2d at 1521), aff’d 830 F.3d 1242 (11th Cir. 2016). 

Defendants do not contest that SH Group has alleged ownership of enforceable trademark 

rights, nor could they given SH Group’s ownership of dozens of federal trademark registrations 

for the 1 HOTEL and 1 HOTEL & HOMES marks, to which Defendants have stipulated. 

(Compl. ¶ 21, Ex. A; Joint Rep. at 3.) SH Group also alleges ownership of common law rights to 

such marks, including 1 HOMES. (Compl. ¶¶ 1, 20–21.) Defendants argue that SH Group has 

not alleged that Bostany has used any infringing mark in his personal capacity (Mot. at 9–10), 

but that is belied by the Complaint. SH Group alleges that Bostany has used the 1 HOTELS and 

1 HOMES marks in his personal capacity, including by listing himself as the “Board President 

for 1 Homes at 1 Hotels” on his LinkedIn profile. (Compl. ¶ 54.) As reflected in the Complaint, 

Bostany misleadingly presents himself as being employed by, or otherwise associated with “1 

Hotels” (showing SH Group’s 1 HOTELS logo) for over two years, where he surprisingly claims 

to be the “Board President for 1 Homes” and the “Director Of Sustainability at 1 Homes” (a title 

that does not even exist at SH Group, where Bostany has never been employed). (Id.) As seen 

in the Complaint, Bostany’s LinkedIn profile does not even mention the Association. (Id.) 

Thus, Bostany misleadingly and falsely communicates that he is a board member or executive at 

SH Group as opposed to a board member and officer of the Association. (Id.) 

As alleged in the Complaint, Bostany also is personally liable for his role in causing the 

Association’s trademark infringement, separate and apart from Bostany’s own infringing use. 

(Id. ¶¶ 44–53.) Defendants’ argument that Bostany cannot be held personally accountable for his 

role in the Association’s infringement of SH Group’s trademark rights is contrary to the law. 

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Defendants’ sole support is the statute and two cases discussed in Section IV.B, which for the 

reasons discussed above do not apply. Further, courts have long recognized that representatives 

of organizations can be held personally liable for trademark infringement. As corporations can 

act only through individuals, “if there was an infringement by the corporation, this infringement 

was caused by some one or more persons, either officers or employees of the corporation, who 

caused the acts to be done.” Chanel, Inc. v. Italian Activewear of Fla., Inc., 931 F.2d 1472, 1477 

(11th Cir. 1991). Thus, if an individual actively and knowingly caused the infringement, he is 

personally liable, without requiring piercing the corporate veil. See Babbit Elecs., Inc. v. 

Dynascan Corp., 38 F.3d 1161, 1184 (11th Cir. 1994); Wholesale Stone, LLC v. Stone-Mart 

Marble & Travertine Grp. LLC, No. 13-24342-Civ., 2014 WL 11906611, at *3 (S.D. Fla. Mar. 

10, 2014). An individual who actively participates “as a moving force in the decision to engage 

in the infringing acts or otherwise causes the infringement as a whole to occur” is personally 

liable for the tortious conduct of the corporation for which that individual is an officer or 

director. TracFone Wireless, Inc. v. Narula, No. 07-22202-Civ., 2008 WL 11407177, at *7 

(S.D. Fla. Jan. 10, 2008). The rule is not different for a board officer of a non-profit 

condominium association, particularly where the board officer acts in violation of the Lanham 

Act, a federal statute, as Bostany has done here. See Hous. Opportunities Project for Excellence, 

510 F. Supp. 2d at 1014 (holding that board directors of a condominium association are not 

shielded by Section 617.0834 from a “federal cause of action” and that the statute also does not 

protect board members when an individual member breaches their duties through “an act or 

omission which was committed in bad faith”). 

The Complaint properly pleads that Bostany, as the Association’s Board President, 

actively and knowingly caused, directed, and induced the Association’s infringement as it used 

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the 1 HOMES mark on its website, board meeting minutes, online store, and merchandise. 

(Compl. ¶¶ 2, 9, 25, 44, 46–53.) Thus, as the “moving force” behind the Association’s tortious 

conduct, Bostany is personally liable. Accordingly, Defendants’ Motion as to Counts IV, V, and 

VII as to Bostany should be denied. 

V. CONCLUSION 

For the reasons discussed above, SH Group requests that the Court deny Defendants’ 

Motion. 

Dated: August 3, 2020 Respectfully submitted, 

/s/ Gavin C. Gaukroger

 Gavin C. Gaukroger 

Fla. Bar. No. 76489 

Christina M. Perry 

Fla. Bar. No. 1003098 

BERGER SINGERMAN LLP 

350 East Las Olas Boulevard 

Suite 1000 

Fort Lauderdale, FL 33301 

Tel. (954) 525-9900; Fax (954) 523-2872 

Email: ggaukroger@bergersingerman.com 

Email: cperry@bergersingerman.com 

Email: DRT@bergersingerman.com 

 DALE M. CENDALI 

(Admitted Pro Hac Vice) 

CLAUDIA RAY 

(Admitted Pro Hac Vice) 

SHANTI SADTLER CONWAY 

(Admitted Pro Hac Vice) 

KIRKLAND & ELLIS LLP 

601 Lexington Avenue 

New York, NY 10022 

Tel. (212) 446-4800; Fax (212) 446-6460 

Email: dale.cendali@kirkland.com 

Email: claudia.ray@kirkland.com 

Email: shanti.conway@kirkland.com 

Attorneys for Plaintiff

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CERTIFICATE OF SERVICE 

I HERBY CERTIFY that on August 3, 2020, a true and correct copy of the foregoing has 

been transmitted by electronic filing with the Clerk of the court via CM/ECF which will send 

notice of electronic filing to all counsel of record. 

 By: /s/ Gavin C. Gaukroger_______

 Gavin C. Gaukroger 

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