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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

FT. LAUDERDALE DIVISON 

CAFÉ, GELATO & PANINI LLC, d/b/a/ 

CAFÉ GELATO PANINI, on behalf of itself 

and all others similarly situated, 

 Plaintiffs, 

v. 

SIMON PROPERTY GROUP, INC., 

SIMON PROPERTY GROUP, L.P., M.S. 

MANAGEMENT ASSOCIATES, INC., and 

THE TOWN CENTER AT BOCA RATON 

TRUST, 

 Defendants. 

Case No. _____________ 

CLASS ACTION COMPLAINT 

I. INTRODUCTION 

1. When a landlord rents mall space to small businesses, it must follow state laws and 

regulations that forbid turning providing utilities into a profit center for secret excess rent. 

Likewise, when a mall landlord promises a tenant in written contract that it will not mark-up its 

electricity rate, it must honor that contractual obligation. But Simon Property Group, Inc. 

(“Simon”), broke these basic rules. Through a pernicious shell game of corporate entities, Simon 

for years executed a fraudulent scheme through a criminal enterprise to overcharge small business 

tenants for electricity at all of its shopping malls throughout the United States. 

2. Simon conducts its business through Simon Property Group, L.P. (“Simon 

Partnership”) and, through Simon Partnership, owns M.S. Management Associates, Inc. (“M.S. 

Management”). M.S. Management is responsible for managing Simon’s shopping malls 

nationwide. Simon creates single purpose entities to own the shopping malls and places those 

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single purpose entities into holding companies owned by Simon Partnership, with the vast majority 

of profits and revenues flowing back to Simon from those operations. M.S. Management manages 

and conducts all the business activities of those single purpose entities. 

3. Simon directed and required M.S. Management to use standard lease agreements 

that falsely represented that the tenants at the shopping malls it ultimately owned would be charged 

the amount that the shopping malls were charged by the local utility providers to supply those 

tenants with electricity. That is, Simon Partnership, at the direction and behest of Simon, caused 

M.S. Management to represent to the tenants that the tenants would pay the same amount for 

electricity that the tenants would pay if they were purchasing the electricity directly from the local

utility. Despite the contractual obligations and representations, Simon, Simon Partnership, M.S. 

Management, and other unnamed co-conspirators engaged in a racketeering enterprise and 

conspiracy, breached the lease agreements with tenants, and violated applicable state laws and 

regulations by inflating the tenants’ electric bills. Sometimes, the fraudulent and illegal markups 

exceeded 100% of the tenant’s actual electricity usage charges. 

4. In an effort to conceal its wrongful and illegal conduct, Simon caused M.S. 

Management to insert into the lease agreements a clause requiring the tenants at the shopping 

malls, ultimately owned and controlled by Simon through its holding companies, to waive their 

right to audit the shopping malls’ electric bills in exchange for agreeing that the electricity charges 

would not be marked-up. Whenever tenants raised issues about their electricity costs, Simon 

caused M.S. Management to inform the tenants that they had waived their audit rights under the 

lease agreement and instructed M.S. Management not to provide the tenants with the actual 

electricity bills from the utilities, which would have revealed the undisclosed mark-ups. 

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5. In furtherance of its fraudulent and illegal scheme, Simon had Valquest, an 

independent third-party energy company, provide its customers with inflated energy surveys to 

justify the marked-up electrical charges. Simons’ scheme allowed it to take advantage of the 

tenants by: (1) fraudulently misrepresenting to them that their electricity charges were not being 

marked-up; (2) actually having the electrical charges marked-up in contravention of the lease 

agreement; and (3) covering up that illegal conduct by using the audit waiver provision to shield 

it from scrutiny. Simon knew it was much bigger, and much better financed than the thousands of 

small business owners nationwide who rented mall spaces from it. In exploiting this inequality, 

Simon used its vast resources and superior negotiating and bargaining power to actively victimize 

and defraud tenants – simply to reap unfair, improper, and illegal profits. 

6. Plaintiff Café, Gelato & Panini LLC, d/b/a/ Café Gelato Panini (“Café Gelato”) was 

a tenant at The Town Center at Boca Raton (“TCBR”), which Simon owns through a single 

purpose entity, The Town Center at Boca Raton Trust (“The Trust”). For years Simon, through 

Simon Partnership, caused M.S. Management and The Trust to lie to Café Gelato by telling Café 

Gelato that it was only paying its share of the actual electricity charges at TCBR. In truth, for 

years Café Gelato was tricked into paying thousands of dollars in illicit electricity mark-ups, the 

vast majority of which were ultimately paid to Simon. Café Gelato brings this class action lawsuit 

on behalf of itself and all other similarly situated current and former tenants to: (1) end Simon’s 

illegal conduct; (2) require that the terms of the lease agreements be honored by charging the 

tenants at the shopping malls that Simon owns through its holding companies their actual 

electricity costs going forward; and (3) return to current and former tenants the illegal electricity 

mark-ups that were charged to them and retained for years on end, as well as appropriate damages, 

interest, and penalties as permitted under the applicable statutes. 

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II. PARTIES 

7. Plaintiff Café, Gelato & Panini LLC, d/b/a/ Café Gelato Panini (“Café Gelato”) is 

a Florida limited liability company and has its principal place of business in Florida. Café Gelato 

is an upscale Italian/Argentinian bistro located at TCBR. Café Gelato signed a 5-year lease with 

the Trust for its location at TCBR on October 24, 2014. (Café Gelato Lease, Ex. A). During its 

lease, Café Gelato received invoices through the United States mail for its electric costs, frequently

issued on Simon letterhead, which Café Gelato believed were the amounts charged by the local 

utility without any mark-up because of the representations contained in the lease agreement. Café 

Gelato paid the full amount of those invoices. 

8. Simon Property Group, Inc. (“Simon”) is a Real Estate Investment Trust (“REIT”) 

headquartered in Indianapolis, Indiana, has its principal place of business in Indiana, and is 

incorporated under the laws of Delaware. The shopping mall empire that is Simon Property Group 

began in 1960, when Melvin Simon, a leasing agent, founded Melvin Simon and Associates 

(“MSA”). In 1993, MSA took the majority of the assets it had amassed to Wall Street through the 

formation of Simon Property Group (“SPG”). SPG’s $840 million initial public offering was at 

the time the largest in U.S. history, and the company began trading on the NYSE under the ticker 

symbol SPG. Today, Simon is the largest REIT in the world. As of December 31, 2019, Simon 

owned or held interests in over 200 income-producing properties in the United States alone. 

9. Simon Property Group, L.P. (“Simon Partnership”) holds, directly or indirectly, 

substantially all of Simon’s assets, including Simon’s ownership interests in joint ventures, and 

conducts substantially all of Simon’s business. Simon Partnership is organized under the laws of 

Delaware, and has its principal place of business in Indianapolis, Indiana. 

10. M.S. Management Associates, Inc. (“M.S. Management”) is incorporated under the 

laws of Delaware and has its principal place of business in Indianapolis, Indiana. M.S. 

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Management is one of Simon and Simon Partnership’s significant subsidiaries. Simon, through 

Simon Partnership, uses M.S. Management to conduct its property management and development 

activities nationwide. M.S. Management was responsible for managing TCBR. 

11. Simon’s revenues are primarily derived from leases with retail tenants and 

generally include fixed minimum rents, percentages of rents based on tenants’ sales volumes, and 

reimbursements from tenants for expenditures related to real estate taxes, insurance, common area 

maintenance, electrical charges, and other recoverable operating expenses, as well as certain 

capital expenditures. Simon also generates revenues from management, leasing and development 

fees, sponsorships, sales of peripheral land at its properties and from sales of its real estate assets. 

The vast majority of the revenues and profits from Simon Partnership, M.S. Management, and the 

single purpose entities held indirectly by Simon flow directly back to Simon. 

12. The Town Center at Boca Raton Trust (“The Trust”) is a New York Trust with its 

principal place of business in Indianapolis, Indiana. 

13. Simon, Simon Property, M.S. Management, and The Trust are not regulated public 

utilities or electric utilities subject to the jurisdiction of the Florida Public Service Commission. 

Regardless, the marking-up of electrical charges is fraudulent conduct separate and distinct from 

the regulation and sale of electricity. 

III. JURISDICTION 

14. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. 

§ 1332(d)(2)(a), because this is an action for an amount exceeding $5,000,000, exclusive of 

interest and costs, and in which at least one class member is a citizen of a state different than all 

of the Defendants. Subject matter jurisdiction also arises under 28 U.S.C. § 1331 based upon the 

federal RICO claims asserted under 18 U.S.C. § 1961 et seq. The Court has personal jurisdiction 

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over the Defendants pursuant to 18 U.S.C. §§ 1965(b) and (d), and supplemental jurisdiction over 

the state-law claims pursuant to 28 U.S.C. § 1367. 

15. This Court also has personal jurisdiction over the Defendants, because they 

continuously and systematically operate, conduct, engage in, and carry on business in Florida by 

owning, managing, and operating at least 24 retail shopping centers in Florida. The Court also has 

specific personal jurisdiction over the Defendants because the Defendants’ wrongful conduct 

occurred in this district. Accordingly, the Defendants are subject to Florida’s long arm jurisdiction

under Fla. Stat. § 48.193. 

16. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b)(2), because 

Defendants’ registered agent is located in Broward County, Florida, which is in this judicial 

district. In addition, Café Gelato’s causes of action accrued within this judicial district and a 

substantial part of the events, acts, and omissions giving rise to Café Gelato’s claims occurred 

here. Furthermore, the Defendants routinely operate and solicit business in this district, and the 

Defendants’ wrongful acts in this district have impacted the general public of this district. 

IV. FACTUAL ALLEGATIONS 

A. Café Gelato Entered Into A Lease With The Trust To Rent Retail Space At TCBR. 

17. Simon, through Simon Partnership, created a single purpose entity, The Trust, 

which owns TCBR. TCBR is a retail shopping center featuring over 200 different stores and 

eateries located in Boca Raton, Florida. Simon caused Simon Partnership to hold The Trust in one 

of its holding companies. TCBR is managed exclusively by M.S. Management, managing the 

shopping mall, and conducting all other related functions at TCBR. 

18. Julian Mancinelli is the majority member and was the day-to-day manager of Café 

Gelato. Mr. Mancinelli works in the retail service industry and has owned and operated various 

cafes and bistros throughout his career. Mr. Mancinelli first began operating Café Gelato at TCBR 

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in 2010. While the rent at TCBR was substantially more expensive than at other locations, Mr. 

Mancinelli hoped that the location would increase his sales and allow his business to grow. 

19. On October 24, 2014, Café Gelato and the Trust entered into a 5-year lease 

agreement for its retail space at TCBR. (Attached as Exhibit A). The leased premises were to be 

used and operated as a business in the retail sale of Italian gelato, gourmet Panini’s, non-alcoholic 

beverages, and bakery products. 

20. Among the various provisions in Café Gelato’s lease agreement was the 

following: 

Section 7.1 Utilities . . . Tenant shall be solely responsible for and 

promptly pay all charges for use or consumption of sewer, gas, 

electricity, water and all other utility services. Landlord may make 

electrical service available to the Premises, and so long as 

Landlord continues to provide such electrical service Tenant 

agrees to purchase the same from Landlord and pay Landlord 

for the electrical service (based upon Landlord's determination 

from time to time of Tenant's consumption of electricity), as 

additional rent, on the first day of each month in advance (and 

prorated for partial months), commencing on the Commencement 

Date at the same cost as would be charged to Tenant from time 

to time by the utility company which otherwise would furnish 

such services to the Premises if it provided such services and 

metered the same directly to the Premises, but in no event at a 

cost which is less than the cost Landlord must pay in providing such 

electrical service. 

(Ex. A at § 7.1) (emphasis added). 

21. Simon, acting through Simon Partnership, caused M.S. Management and The Trust 

to put § 7.1 into the lease agreements that were used at TCBR. Pursuant to § 7.1 of the lease 

agreement, The Trust uniformly promised Plaintiff and every tenant at TCBR that they would be 

charged the same for their electricity as if they were being billed directly by the local utility 

company. Accordingly, the tenants were to receive their electricity at the rate paid by The Trust 

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at TCBR without any additional mark-up. These representations and practices were repeated at 

Simon malls around the country in a materially uniform manner. 

22. Simon, acting through Simon Partnership, caused M.S. Management and The Trust 

to also insert an audit waiver provision in the lease agreement requiring the tenants at TCBR to 

waive any right to audit the invoices and records to determine whether they were actually being 

charged the correct amount for electricity. Pursuant to § 6.2 of the lease agreement, “Tenant shall 

have no right to audit Landlord’s books and records . . . .” (Ex. A at § 6.2). This practice was 

repeated at Simon malls around the country in a materially uniform manner. 

B. Cafe Gelato Attempts To Mitigate Its Exorbitant Electrical Charges. 

23. Café Gelato made a substantial investment in building out the retail space it rented 

at TCBR, believing that it would be a profitable location and that Simon would bill Café Gelato 

for electricity based on the kilowatt hours it actually used at the same rate that it would otherwise 

be charged, without any mark-up by Simon of the electric rate. Mr. Mancinelli invested in highend, energy efficient equipment in order to mitigate his electrical costs. 

24. Shortly after Cafe Gelato opened its location at TCBR, it began receiving as part of 

its monthly invoice through the U.S. mail a line item cost for electricity. (See Café Gelato’s 

Invoice, attached as Exhibit B). 

25. When Café Gelato first began its operations at TCBR, it was relatively profitable 

due to anticipated foot traffic and other benefits of the location. Because of this, Café Gelato was 

able to maintain its operations, despite the continuing and unexpectedly-high electricity charges. 

26. Over time, however, the foot traffic at TCBR decreased as consumers began 

shopping more online, and Cafe Gelato began to see a substantial drop in its revenue. However, 

despite this decrease in business and the corresponding decrease in Café Gelato’s use of its 

electrical equipment, the electricity bills that Simon sent Café Gelato through the U.S. mail never 

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decreased substantially. Indeed, Café Gelato’s electricity bills continued to average close to $500 

per month. 

27. Cafe Gelato struggled over the next few years as revenues decreased as a result of 

the reduction of customers visiting TCBR. During this time, Cafe Gelato did everything it could 

to cut costs in order to maintain its revenues. 

28. Other than Cafe Gelato’s rent, one of its largest business expenses was electricity. 

Each year, Simon would send purported technicians that surveyed Café Gelato’s business location 

and its electrical equipment supposedly for the purpose of providing a true and accurate estimate 

of Café Gelato’s energy consumption. But, those electrical estimates were intentionally inflated 

and the electrical rate intentionally marked-up. 

29. Café Gelato continued to struggle financially as a result of decreased business, high 

rent, and high electricity bills. When Café Gelato fell behind in its rent payments, it communicated 

with Simon in good faith for relief, but to no avail. Simon continued to charge Café Gelato high 

rents and exorbitant electricity charges that eventually became untenable. 

C. Simon Conspired With Valquest To Inflate Cafe Gelato’s Energy Surveys. 

30. Valquest Systems, Inc. (“Valquest”), is an energy company based in Texas that, 

among other things, conducts and provides energy surveys and audits. Simon contracted with 

Valquest to provide tenants at the various shopping malls that were owned by Simon through its 

holding companies with energy surveys that were used to project energy costs for a storefront 

location or to substantiate the energy costs that either M.S. Management or Simon billed and sent 

its tenants. 

31. Sometime in the second quarter of 2005, Simon entered into an agreement and 

conspired with Valquest and directed Valquest to artificially inflate the amount of the electricity 

costs in the energy surveys provided to the tenants that rented space at malls that were owned by 

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Simon through its holding companies. Valquest artificially inflated the electricity costs in return 

for the payments it received from Simon for conducting the falsified energy surveys. Simon and 

Valquest knew the Valquest surveys were inaccurate because they inflated the tenants’ electricity 

costs and Simon knew what the true costs were. Indeed, Simon resold electricity to its tenants at 

rates higher than what it paid per kilowatt hour in violation of Florida law. 

32. For example, even after Cafe Gelato’s business and corresponding electricity 

consumption decreased substantially, Simon continued to provide Café Gelato with charge backup 

reports that overstated Café Gelato’s electricity usage and the electric rate in order to substantiate

the marked-up electrical charges. (See Charge Backup Report, attached as Exhibit C). Simon 

continued to use the inflated energy surveys to hide its illegal conduct and the illegal conduct of 

its co-conspirators Valquest, Simon Partnership, M.S. Management, The Trust, and the single 

purpose entities it created to own its shopping malls. Simon directly profited from the illegal 

conduct by knowingly and intentionally marking up Cafe Gelato’s electricity charges and also by 

causing M.S. Management to knowingly and intentionally mark-up Cafe Gelato’s electrical 

charges. Simon shared those illicit profits with Valquest by paying Valquest’s fees for the surveys, 

even though it knew and intended those surveys to be inaccurate. 

D. Simon’s Fraud Is Revealed At Town Center at Boca Raton. 

33. In early 2020, Mr. Mancinelli began reviewing the records of his business 

operations at TCBR and the amounts that Simon had charged him for electricity over time. As a 

result of this process, Mr. Mancinelli first began to suspect that he had been defrauded. 

E. Simon Overcharges Tenants Nationwide At The Malls It Owns Through Holding 

Companies. 

34. Simon’s practice of overcharging the tenants at the malls it owns through its holding 

companies for electricity is not isolated to TCBR. Simon has a nationwide policy and practice of 

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charging the tenants that rent space at the shopping malls it owns through its holding companies 

in excess of their actual costs for electricity and resold electricity to its tenants at rates higher than 

what it paid per kilowatt hour, irrespective of the standard and uniform written contracts that it 

causes M.S. Management to provide to the tenants and of the laws of the states in which Simon 

operates. 

35. Simon, acting through Simon Partnership, creates single purpose entities to 

purchase the shopping centers that are held by Simon. Simon then causes Simon Partnership to 

hire M.S. Management to operate those shopping centers. Simon, acting through Simon 

Partnership, causes M.S. Management and the single purpose entities that own the shopping malls, 

to insert the equivalent of § 7.1 into each and every lease rental agreement used with the tenants 

that rent space at their malls. As noted above, § 7.1 uniformly states that: 

Tenant agrees to . . . pay Landlord for the electrical service . . . at 

the same cost as would be charged to Tenant from time to time 

by the utility company which otherwise would furnish such 

services to the Premises if it provided such services and metered 

the same directly to the Premises . . . 

(Ex. A at § 7.1) (emphasis added). 

36. Thus, at every mall that Simon owns through its holding companies, they use the 

same uniform and standard lease agreement that promises the tenants that they would be charged 

the same for their electricity as if they were being billed directly by the local utility company. 

Accordingly, the tenants at every shopping mall owned by Simon through its holding companies 

were to receive their electricity at the cost the shopping mall incurred without any additional markup. 

37. Similarly, and as described above, Simon, acting through Simon Partnership, 

caused M.S. Management and the single purpose entities that nominally owned the shopping malls 

held in the holding companies, to insert an audit waiver provision in the lease agreement requiring 

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the tenants at all of those shopping malls to waive any right to audit the invoices and records to 

determine whether they were actually being charged the correct amount for electricity. Pursuant 

to § 6.2 or its equivalent of the standard lease agreements, “Tenant shall have no right to audit 

Landlord’s books and records . . . .” (Ex. A at § 6.2). 

38. Simon’s conspiracy with Valquest was uniform and nationwide. Simon directly 

profited from the illegal conduct by knowingly and intentionally causing M.S. Management and 

its single purpose entities to mark-up the tenants’ electrical charges at the malls Simon owned 

through its holding companies. Simon shared those illicit profits with Valquest by paying 

Valquest’s fees for surveys, even though it knew and intended those surveys to be inaccurate. 

39. Despite the lease rental agreements’ promise to charge the tenants at the malls 

Simon owned through its holding companies no more than what the malls paid for electricity, 

Simon, through Simon Partnership, caused M.S. Management and the single purpose entities to 

charge the tenants more for electricity than what the malls actually paid the local utility companies 

for that electricity. Accordingly, due to Simon’s deceitful practice which resulted in the breach of 

the lease agreements, the tenants at the malls Simon owns through its holding companies suffered 

significant and substantial damages in excess of $100,000,000. 

V. CLASS ACTION ALLEGATIONS 

 40. Plaintiff brings this action against Defendants pursuant to Rules 23(a), (b)(2), and 

(b)(3), of the Federal Rules of Civil Procedure, on behalf of itself and all other persons and entities 

similarly situated. Plaintiff seeks certification of the following classes (referred to collectively as 

the “Class”): 

The Nationwide Class 

All tenants at shopping malls managed by M.S. Management whose 

electricity charges were determined based on a Valquest survey 

within the applicable limitations period. 

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Excluded from the Nationwide Class are Simon, Simon Partnership, 

M.S. Management, and The Trust and their affiliates and related 

companies, their directors, corporate officers, and their immediate 

family members, and any government entity. 

The Florida Statutory Class 

All tenants at shopping malls in Florida managed by M.S. 

Management whose electricity charges were determined based on a 

Valquest survey within the applicable limitations period. 

Excluded from the Florida Statutory Class are Simon, Simon 

Partnership, M.S. Management, and The Trust and their affiliates 

and related companies, their directors, corporate officers, and their 

immediate family members, and any government entity. 

The TCBR Class 

All tenants at TCBR whose electricity charges were determined 

based on a Valquest survey within the applicable limitations period. 

Excluded from the TCBR Class are Simon, Simon Partnership, 

Simon Management, and The Trust and their affiliates and related 

companies, their directors, corporate officers, and their immediate 

family members, and any government entity. 

A. Numerosity 

41. The Nationwide Class consists of thousands of current and former tenants who 

entered into lease agreements at shopping malls managed by M.S. Management and ultimately 

owned by Simon through its holding companies for the purpose of using the premises for retail 

activities and related services. The Florida Statutory Class consists of thousands of current and 

former tenants at malls managed by M.S. Management in Florida who were charged more than 

their actual electricity costs for their electricity use at those malls. Finally, the TCBR Class 

consists of hundreds of current and former tenants at TCBR who were charged more than their 

actual electrical costs at TCBR. 

42. The names and addresses of all Class members can be identified in the business 

records maintained by the Defendants. The precise number of Class members will be obtained 

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through discovery but based on publicly available information, the numbers are clearly more than 

can be consolidated in one action, and it is impractical for each Class member to bring suit 

individually. For example, Simon’s annual reports indicates that it owns over 200 mall properties 

across the United States, including 24 mall properties in Florida. Those malls contain tens of 

millions of rentable square feet. As a result, there are likely hundreds of TCBR Class members, 

thousands of Florida Statutory Class members, and at least tens of thousands of Nationwide Class 

members, and due to turnover, the actual number of current and former tenants who are Class 

members is likely a multiple of that amount. The Plaintiff does not anticipate any difficulties in 

the management of the action as a class action. 

B. Commonality 

43. There are questions of law and fact that are common to the claims of Plaintiff and 

the Class. These common questions predominate over any questions that are particular to any 

individual Class member. Among such common questions of law and fact are the following: 

a. Whether the Defendants marked up the electric rates that they charged the 

Class members; 

b. Whether The Trust breached its lease agreements by charging the TCBR 

Class members for electricity in excess of what The Trust paid the electric 

utility for that electricity; 

c. Whether The Trust breached the implied covenant of good faith and fair 

dealing in its lease agreements when it charged the TCBR Class members 

amounts for electricity greater than what The Trust paid the electric utility 

for that electricity; 

d. Whether the Defendants were unjustly enriched by receiving the profits 

from overcharged Class members for electricity in excess of the actual 

amounts charged by the electric utilities for that electricity; 

e. Whether the Defendants engaged in a deceptive and unfair business practice 

by misleading the Class members by causing M.S. Management to put in 

the lease agreement that it would not charge the tenants in excess of the 

actual costs for electricity and then causing M.S. Management to charge 

them amounts in excess of the actual electricity costs; 

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f. Whether Defendants have a policy or practice of overcharging the Class 

members for energy costs at all of the locations owned by Simon through 

its holding companies in direct contravention of the lease agreements; 

g. Whether the Defendants in conjunction with Valquest formed a criminal 

enterprise with the intention of overcharging the Class members for 

electricity; 

h. Whether the Defendants violated 18 U.S.C. § 1962; 

i. Whether the Defendants violated Florida’s Civil RICO statutes; and 

j. The amount of damage the Class members sustained as a result of the 

Defendants’ wrongful conduct, and the proper measure of such damage. 

C. Typicality 

44. Plaintiff’s claims are typical of the claims of the Class because of the similarity, 

uniformity, and common purpose of the Defendants’ unlawful conduct. Each Class member has 

sustained damages as a result of the Defendants’ wrongful conduct in the same manner as the 

Plaintiff – that is, each Class member was charged in excess of what the actual costs were for 

electricity, contrary to: (1) the express terms of the uniform lease agreements where those 

agreements required that the Class members be charged no more than what the shopping malls 

paid the utility for that electricity; and (2) applicable law. 

D. Adequacy of Representation 

45. Plaintiff is an adequate representative of the Class and will fairly and adequately 

protect the interests of the Class. Plaintiff is committed to the vigorous prosecution of this action

and has retained competent counsel, experienced in litigation of this nature, to represent it. There 

is no hostility between Plaintiff and the unnamed Class members. Plaintiff anticipates no difficulty 

in the management of this litigation as a class action. 

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46. To prosecute this case, Plaintiff has chosen the law firms of Buckner + Miles and 

Kelley Uustal. These law firms are experienced in class action litigation and have the financial and 

legal resources to meet the substantial costs and legal issues associated with this type of litigation.

E. Requirements of Fed. R. Civ. P. 23(b)(3) 

1. Predominance 

47. The questions of law or fact common to the claims of the Plaintiff and the Class 

predominate over any questions of law or fact affecting only individual members of the Class. All 

claims by Plaintiff and the unnamed Class members are based on the Defendants’ deceitful practice 

of charging the Class members more than what the Defendants’ shopping malls paid the utilities 

for electricity, in breach of the express terms of the common form lease agreements and applicable 

state law. 

48. Common issues predominate when, as here, liability can be determined on a Classwide basis. 

49. As a result, when determining whether common questions predominate, courts 

focus on the liability issue, and if the liability issue is common to the class, as it is in this case, 

common questions will be held to predominate over individual questions. 

50. Because all claims by Plaintiff and the unnamed Class members are based on the 

same misconduct by the Defendants, in particular, that the Defendants charged the Class members 

more than what the malls paid for electricity—in direct contravention of the express terms of the 

lease agreements — the predominance requirement of Fed. R. Civ. P. 23(b)(3) is satisfied. 

2. Superiority 

51. A class action is superior to hundreds of individual actions in part because of the 

non-exhaustive factors listed below: 

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a. Joinder of all Class members would create extreme hardship and 

inconvenience because of their geographical dispersion. Class members 

reside throughout the United States. 

b. Individual claims by the Class members are impractical because the costs 

to pursue individual claims exceed the value of what any one Class member 

has at stake. The Defendants are large and well-funded. Moreover, some 

of the Class members have ongoing contractual relationships with some of 

the Defendants, which may make some Class members fearful or reluctant 

to pursue their claims, even if they had the resources to do so. As a result, 

individual Class members are unable to prosecute and control separate 

actions. 

c. The interests of justice will be well served by resolving the common 

disputes of potential Class members in one forum. 

d. The action is manageable as a class action; individual lawsuits are not 

economically maintainable as individual actions. 

COUNT I 

VIOLATION OF RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS 

ACT (“RICO”), 18 U.S.C. § 1962(A), (C)-(D))

SIMON, SIMON PARTNERSHIP, M.S. MANAGEMENT 

AND THE TRUST 

(ON BEHALF OF ALL CLASSES)

52. Plaintiff re-alleges and incorporates paragraphs 1 through 51 of this Complaint as 

if fully set forth herein. 

53. Simon conducts its business – legitimate and illegitimate – through various 

affiliates and subsidiaries, each of which is a separate legal entity. Plaintiff brings this count on

behalf of the Nationwide Class, the Florida Statutory Class, and the TCBR Class against Simon, 

Simon Partnership, M.S. Management, and The Trust. At all relevant times, Simon, Simon 

Partnership, M.S. Management, The Trust, and Valquest have been “persons” under 18 U.S.C. § 

1961(3) because they are capable of holding, and do hold, “a legal or beneficial interest in 

property.” 

54. Section 1962(a) makes it “unlawful for any person who has received any income 

derived, directly or indirectly, from a pattern of racketeering activity or through collection of an 

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unlawful debt in which such person has participated as a principal within the meaning of section 

2, Title 18, United States Code, to use or invest, directly or indirectly, any part of such income, or

the proceeds of such income, in acquisition of any interest in, or the establishment or operation of, 

any enterprise which is engaged in, or the activities of which affect, interstate or foreign 

commerce.” 18 U.S.C. § 1962(a).

55. Section 1962(c) makes it “unlawful for any person employed by or associated with 

any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to 

conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a 

pattern of racketeering activity.” 18 U.S.C. § 1962(c). 

56. Section 1962(d) makes it unlawful for “any person to conspire to violate” Sections 

1962(a) and (c), among other provisions. 18 U.S.C. § 1962(d). 

57. For many years, Simon sought to illegally increase its profits by wrongfully 

inflating the cost of electricity to the tenants that rented space at the shopping malls it owned 

through its holding companies. Simon exercised control over Simon Partnership. Simon, through 

Simon Partnership, created holding companies to hold the single purpose entities it created for 

each shopping mall it purchased. Simon also created M.S. Management, which is owned by Simon 

and Simon Partnership, and manages Simon’s shopping malls. For example, Simon caused Simon 

Partnership to use The Trust, a single purpose entity to own TCBR, which is held in one of Simon’s 

holding companies. TCBR was managed by M.S. Management. In order to hide its illegal conduct 

from scrutiny, Simon caused Simon Partnership to require M.S. Management and the single 

purpose entities it created to own the shopping malls to include a lease provision in the lease 

agreement requiring tenants to relinquish their right to audit the shopping mall’s electrical charges.

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58. As part of the enterprise, Simon also conspired with Valquest, an energy company 

that, among other things, conducts energy surveys, that were used to defraud Plaintiff and of the 

Classes. Simon contracted with Valquest to provide false electrical audits to Plaintiff and all of 

the Classes in order to falsely justify and conceal the inflated electrical charges. 

59. Valquest knowingly and intentionally assisted Simon and helped it to defraud 

Plaintiff and all of the Classes by obtaining money through a series of fraudulent 

misrepresentations and acts. The association was structured by contracts between and among the 

participants. Simon had a contract with Valquest under which Valquest agreed to provide energy 

surveys to Simon’s tenants in exchange for payments from Simon. Valquest’s so-called energy 

audits were nothing more than a sham used to justify the Defendants’ mark-up of electrical charges 

and to help hide their illegal conduct from Plaintiff and the Classes. 

60. Accordingly, Simon, Simon Partnership, M.S. Management, The Trust, and 

Valquest, along with other unnamed co-conspirators were employed by and associated with an 

illegal enterprise, and conducted and participated in that enterprise’s affairs, through a pattern of 

racketeering activity consisting of numerous and repeated uses of the interstate mail and wire 

facilities to execute a scheme to defraud, all in violation of RICO, 18 U.S.C. § 1962(a), (c)-(d). 

These acts, committed by interstate wire and through the mails, include: (1) sending and receiving 

thousands of lease agreements that contained representations that limited the electric charges to 

tenants to the amount charged by the local electrical utility that the Defendants intended to and did 

violate; (2) sending tens of thousands of invoices to tenants on a monthly basis through the U.S. 

mail that falsely represented a charge for energy that was in fact inflated; (3) receiving tens of 

thousands of the inflated energy payments from the tenants on a monthly basis by interstate wire 

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and through the U.S. mail; and (4) sending fraudulent energy audits by interstate wire and through 

the U.S. mail. 

61. Simon and its co-conspirators profited handsomely from the enterprise and Plaintiff 

and the members of all of the Classes suffered because the enterprise significantly increased the 

amounts paid for electricity by Plaintiff and the Classes. While the majority of those overpayments 

on electricity were received by Simon, smaller amounts of the profits from the marked-up electrical 

charges were retained by The Trust, the other single purpose entities created to own the shopping 

malls, Simon Partnership, and M.S. Management, and some were paid to Valquest. 

62. At all relevant times, Simon, Simon Partnership, M.S. Management, Valquest, and 

The Trust, along with other unidentified co-conspirators were associated-in-fact for the common 

purpose of engaging in the Defendants’ profit-making scheme. 

63. The members of the RICO enterprise all share a common purpose: to enrich 

themselves at all of the members of the Classes expense by maximizing the revenues of Simon, 

Simon Partnership, M.S. Management, The Trust, the other single purpose entities Simon created 

to own its shopping malls, and Valquest, through fraudulently inducing Plaintiff and the Classes 

to pay more for electricity than represented to them in the lease agreements through a scheme that 

used inflated energy audits to help justify the marked up electric charges. The Defendants 

increased their profits and Valquest benefitted because it was compensated by Simon for providing 

the inflated energy audits to Plaintiff and the members of the Classes. The Defendants and 

Valquest shared the bounty of their criminal enterprise, i.e., by sharing the overpayments for 

electrical charges generated by the joint scheme to defraud the Plaintiff and the Class members. 

64. Each participant in the RICO enterprise had systematic linkage to each other 

through corporate ties, contractual relationships, financial ties, and continuing coordination of 

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activities. The RICO enterprise and the Defendants functioned as a continuing unit with the 

purpose of furthering the illegal scheme and their common purpose of increasing their revenues 

and profits. The Defendants participated in the operation and management of the RICO enterprise 

by directing its affairs as described herein. While the Defendants participated in, and are members 

of, the enterprise, they have a separate existence from the enterprise, including distinct legal 

statuses, different offices and roles, bank accounts, officers, directors, employees, reporting 

requirements, and financial statements. 

65. This RICO enterprise has existed for years and continues to exist and operates 

pursuant to certain agreements entered into between and among Simon, Simon Partnership, M.S. 

Management, The Trust, Valquest, and other unnamed co-conspirators. The RICO enterprise has 

functioned as a continuing unit and has and maintains an ascertainable structure separate and 

distinct from the pattern of racketeering activity.

66. The Defendants conducted and participated in the affairs of the RICO enterprise 

through a pattern of racketeering activity that consisted of numerous and repeated violations of the 

federal mail and wire fraud statutes, which prohibit the use of any interstate or foreign mail or wire

facility for the purpose of executing a scheme to defraud, in violation of 18 U.S.C. §§ 1341 and 

1343. Plaintiff has attached a standard form lease agreement (Ex. A), a monthly invoice (Ex. B), 

and a charge backup report (Ex. C) representing the continuity of the Defendants’ conduct over 

time and on a monthly basis, representing separate and distinct instances of mail and wire fraud. 

Thus, Plaintiff has demonstrated the continuity of the Defendants’ conduct over a fixed period of 

time. Furthermore, the Defendants continue to engage in these predicate acts and to harm the Class 

members on a daily basis, which establishes a threat of long-term racketeering activity and 

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evidences the continuity of Simon’s and the other Defendants’ open-ended pattern of racketeering 

activity. 

67. Simon received payment for the marked-up electric charges from Plaintiff and the 

members of the Classes sometimes directly and sometimes indirectly through Simon Partnership, 

M.S. Management, The Trust, and other unnamed co-conspirators through the United States Postal 

Service and interstate wire facilities in violation of 18 U.S.C. §§ 1341 and 1343. In furtherance of 

the scheme, Simon, sometimes directly and sometimes indirectly through M.S. Management, 

Simon Partnership, The Trust, and other unnamed co-conspirators committed thousands of 

separate mail and wire fraud violations on a monthly basis for years through the transmission of 

its standard form lease agreements, monthly invoices, and energy surveys, each one constituting 

its own separate and distinct predicate act. Each of these violations was related because they 

shared the common purpose of defrauding Plaintiff and the Classes by overcharging them for 

electricity in direct contravention of the express representations of the lease agreement. Simon 

also transferred between and among, and received sums from, Plaintiff and the Classes, Valquest, 

Simon Partnership, M.S. Management, The Trust, and other unnamed co-conspirators, including 

but not limited to the payments of the marked-up electricity costs, in furtherance of its scheme to 

defraud Plaintiff and Class members in violation of 18 U.S.C. § 1343. 

68. These related acts had the same or similar purpose, results, participants, victims, 

and methods of commission, and are otherwise related by distinguishing characteristics which are 

not isolated events. 

69. Simon and the other Defendants had the specific intent to participate in the overall 

RICO enterprise, which is evidenced by its scheme to defraud Plaintiff and the Classes. Simon’s 

scheme was reasonably calculated to deceive the Plaintiff and all of the Class members, all of 

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whom are of ordinary prudence and comprehension, through the execution of its complex, 

surreptitious, and illegal mark-up of electricity charges scheme. Plaintiff and Class members relied 

on the uniform misrepresentations in the standard lease agreements that the shopping malls would 

not charge more for electricity than if the electricity was purchased directly from the local public 

utility provider. Plaintiff and the Classes relied on the uniform misrepresentations in the lease 

agreements and the invoices believing that they accurately reflected the actual electric costs as 

required under the standard lease agreements. Plaintiff and the Classes relied on the invoiced 

charges for electricity and the uniform misrepresentations in the inflated energy audits. 

70. Simon, Simon Partnership, M.S. Management, The Trust, Valquest, and other 

unnamed co-conspirators received money from a pattern of racketeering activity and invested that 

money in the enterprise, and the enterprise affected interstate commerce. Furthermore, Simon 

used and invested the income it received through its pattern of racketeering activity to operate its 

business, which caused Plaintiff and the Classes to suffer damages. The investment of the marked 

up electricity profits obtained through Simon’s deception in the standard lease agreements it 

caused M.S. Management and the single purpose entities it created that owned its shopping malls 

to use enabled Simon to perpetuate the operation of the enterprise and to continue to defraud 

Plaintiff and Classes members on an ongoing basis. In so doing, Simon and the other Defendants 

violated Section 1962(a). 

71. Simon and the other Defendants and Valquest conducted and participated both 

directly and indirectly in the conduct of the above-described RICO enterprise’s affairs through a 

pattern of racketeering activity in violation of 18 U.S.C. § 1962(c). Specifically, the lease 

agreements used at the shopping malls Simon owned through its holding companies contained 

uniform misrepresentations that the Plaintiff and the Classes would not be charged more for 

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electricity than if the Plaintiff and the Classes purchased that electricity directly from the local 

public utility provider. The invoices sent by U.S. mail to the Plaintiff and the Classes, sometimes 

by Simon directly and sometimes by M.S. Management, continued the deception by itemizing the 

cost for electricity when, in fact, that cost was inflated and represented profit to Simon. Plaintiff 

and the Nationwide Class, all of whom were of ordinary prudence and comprehension, relied on 

the uniform misrepresentations in the lease agreements and the invoices, believing that they 

accurately reflected the actual electric costs as required under the standard lease agreements. 

Further, Simon through Simon Partnership, M.S. Management, The Trust, and the single purpose 

entities it created to own its shopping malls, contractually barred audits which would have 

uncovered the scheme, instead only providing false audits produced by Valquest. Plaintiff and the 

Classes relied on the invoiced charges for electricity and the uniform misrepresentations in the 

inflated energy audits. 

72. Simon, Simon Partnership, M.S. Management, The Trust, Valquest, and other 

unnamed co-conspirators, as noted above, conspired to violate sections 1962(a) and (c), in 

violation of 18 U.S.C. § 1962(d). 

73. By reason, and as a result thereof, Defendants’ conduct and participation in the 

racketeering activity described herein has caused Plaintiff and the Classes to directly incur 

damages. 

WHEREFORE, Plaintiff, on behalf of itself and all similarly situated individuals and 

entities, demands judgment against Simon, Simon Partnership, M.S. Management, and The Trust 

for compensatory and treble damages, pre- and post-judgment interest, attorneys’ fees, costs 

incurred in bringing this action, and any other relief the Court deems just and proper. 

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COUNT II 

UNJUST ENRICHMENT 

SIMON, SIMON PARTNERSHIP, AND M.S. MANAGEMENT 

(ON BEHALF OF ALL CLASSES) 

74. Plaintiff re-alleges and incorporates paragraphs 1 through 51 of this Complaint as 

if fully set forth herein.

75. Simon, Simon Partnership, and M.S. Management received, and continue to 

receive, payments for electricity from all Class members in excess of what the shopping malls 

owned by Simon through its holding companies actually paid and pay for that electricity from the 

local electric utility company. Instead of charging tenants only for what the shopping malls were 

charged for electricity as was promised, Simon, Simon Partnership, and M.S. Management charged 

Plaintiff and the Classes substantially more for that electricity, retaining the excess amount as 

unearned profit for themselves. There is no contract between Plaintiff or any Class member and 

Simon, Simon Partnership, or M.S. Management that governs the cost of electricity. Instead, all 

of those contracts are between the Class members and the single purpose entities Simon created to 

own its shopping malls. 

76. Plaintiff and the Class members directly conferred a benefit on Simon, Simon 

Partnership, and M.S. Management in the form of the money they paid for the marked-up electrical 

charges. Simon, Simon Partnership, and M.S. Management knowingly and wrongfully accepted 

and retained that marked-up amount of the electricity costs for their own benefit. Accordingly, 

Simon, Simon Partnership, and M.S. Management received benefits, in the form of the profits 

derived from marking up Plaintiff and all of the Class’ members energy charges, that they unjustly 

retained at the expense of Plaintiff and all of the Class members. 

77. The circumstances are such that it would be inequitable to allow Simon, Simon 

Partnership, and M.S. Management to retain the payments they collected from Plaintiff and all of 

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the Class members that were in excess of what the shopping malls owned by Simon through its 

holding companies paid the local utilities for that same electricity. 

WHEREFORE, Plaintiff, on behalf of itself and all similarly situated individuals and 

entities, demands judgment against Simon, Simon Partnership, and M.S. Management for 

compensatory damages, punitive damages, pre- and post-judgment interest, attorneys’ fees, costs 

incurred in bringing this action, and any other relief the Court deems just and proper. 

COUNT III 

VIOLATION OF FLORIDA DECEPTIVE AND UNFAIR TRADE PRACTICES ACT 

SIMON, SIMON PARTNERSHIP, M.S. MANAGEMENT 

(ON BEHALF OF THE FLORIDA STATUTORY CLASS AND THE TCBR CLASS) 

78. Plaintiff re-alleges and incorporates paragraphs 1 through 51 of this Complaint as 

if fully set forth herein. 

79. This Count is brought pursuant to the Florida Deceptive and Unfair Trade Practices 

Act (“FDUTPA”). 

80. At all times material, Plaintiff and all members of the Florida Statutory Class and 

the TCBR Class were consumers within the meaning of Section 501.203, Fla. Stat., and are entitled 

to relief under FDUTPA in accordance with Section 501.211, Fla. Stat. 

81. At all times material, Simon, Simon Partnership, and M.S. Management conducted 

trade and commerce within the meaning of Section 501.203, Fla. Stat. 

82. Simon, Simon Partnership, and M.S. Management have engaged in unlawful 

schemes and courses of conduct through one or more of the unfair and deceptive acts and practices 

alleged above. 

83. The concealment and omissions of material facts and misrepresentations and 

deceptions alleged in the preceding paragraphs occurred in connection with Simon, Simon 

Partnerships, and M.S. Management’s trade and commerce in Florida. 

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84. Simon’s, Simon Partnership’s, and M.S. Management’s unfair and deceptive acts 

and practices violated FDUTPA, Sections 501.201 and 501.211, Fla. Stat. 

85. As a direct and proximate result of Simon, Simon Partnerships and M.S. 

Management’s FDUTPA violations, Plaintiff, the Florida Statutory Class, and the TCBR Class 

have been damaged in an amount to be proven at trial. 

86. Plaintiff, the Florida Statutory Class, and the TCBR Class are entitled to actual 

damages, attorneys’ fees and costs, and all other remedies available under FDUTPA. 

WHEREFORE, Plaintiff, on behalf of itself and all similarly situated individuals and 

entities, demands judgment against Simon, Simon Partnership, and M.S. Management for 

compensatory damages, pre- and post-judgment interest, attorneys’ fees, costs incurred in bringing 

this action, and any other relief the Court deems just and proper. 

COUNT IV 

VIOLATION OF FLORIDA’S CIVIL REMEDIES FOR CRIMINAL PRACTICES ACT, 

FLA. STAT. §§ 772.103, 772.104(1), 777.011, AND 777.03(1)(A) 

SIMON, SIMON PARTNERSHIP, M.S. MANAGEMENT 

(ON BEHALF OF THE FLORIDA STATUTORY CLASS AND THE TCBR CLASS) 

87. Plaintiff re-alleges and incorporates paragraphs 1 through 51 and 53 through 73 of 

this Complaint as if fully set forth herein. 

88. As described above, Simon, Simon Partnership, M.S. Management, Valquest, and 

other unnamed co-conspirators, were associated in an enterprise and conspired, aided and abetted 

and agreed to conduct and participate, directly and indirectly, in the conduct of the affairs of the 

enterprise through a pattern of racketeering activity, in violation of Fla. Stat. §§ 772.103, 

772.104(1), 777.011, and 777.03(1)(a). 

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89. In furtherance of its scheme, Simon, Simon Partnership, M.S. Management, and 

other unnamed co-conspirators engaged in thousands of acts of mail and wire fraud for more than 

fifteen years in violation of federal law, as set forth above, and Fla. Stat. § 817.034. 

90. Simon, Simon Partnership, M.S. Management, Valquest, and other unnamed coconspirators engaged in a pattern of racketeering activity and engaged in more than two incidents 

of racketeering or racketeering conduct that has the same or similar intents, results, accomplices, 

victims, or methods of commission, and that are otherwise interrelated by distinguishing 

characteristics and are not isolated incidents. 

91. Plaintiff has attached a standard lease agreement (Ex. A), a monthly invoice (Ex. 

B), and a charge backup report (Ex. C), that represent the continuity of Defendants’ conduct over 

time and on a monthly basis and are separate and distinct examples of mail and wire fraud 

violations. Thus, Plaintiff has demonstrated the continuity of the Defendants’ conduct over a fixed 

period of time. Furthermore, Simon, Simon Partnership, M.S. Management and Valquest continue 

to engage in these predicate acts and harm Florida Statutory Class members and the TCBR Class 

members on a daily basis, which establishes a threat of long-term racketeering activity and 

evidences the continuity of Simon, Simon Partnerships, and M.S. Management’s open-ended 

pattern of racketeering activity. 

92. Simon, Simon Partnership, and M.S. Management used and invested the income 

they received through their pattern of racketeering activity to operate their business which caused 

Plaintiff, the Florida Statutory Class members, and the TCBR Class members to suffer direct 

damages. The investment of the marked-up energy costs obtained by Simon, Simon Partnership, 

and M.S. Management through their illegal conduct of marking up the tenants’ electrical charges 

enabled Simon, Simon Partnership, and M.S. Management to perpetuate the operation of the 

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enterprise and to continue to defraud Plaintiff, the Florida Statutory Class members, and the TCBR 

Class members. 

93. By reason, and as a result thereof, Simon, Simon Partnership, and M.S. 

Management’s conduct and participation in the racketeering activity described herein directly 

caused Plaintiff and the Florida Statutory Class members to incur significant and substantial 

damages. 

WHEREFORE, Plaintiff, on behalf of itself and all similarly situated individuals and 

entities, demands judgment against Simon, Simon Partnership, and M.S. Management for 

compensatory and treble damages, pre- and post-judgment interest, attorneys’ fees, costs incurred 

in bringing this action, and any other relief the Court deems just and proper. 

COUNT V 

BREACH OF CONTRACT 

THE TRUST 

(ON BEHALF OF THE TCBR CLASS) 

94. Plaintiff re-alleges and incorporates paragraphs 1 through 51 of this Complaint as 

if fully set forth herein. 

95. The Trust entered into lease agreements with Plaintiff and the TCBR Class 

members for the use of the premises located at TCBR, for the purpose of retail sales and related 

services. 

96. In Plaintiff and the TCBR Class members’ lease agreements, The Trust stated with 

respect to electrical charges that the “Landlord may make electrical service available to the 

Premises . . . at the same cost as would be charged to Tenant from time to time by the utility 

company which otherwise would furnish such services to the Premises if it provided such services 

and metered the same directly to the Premises . . . .” Accordingly, The Trust promised Plaintiff 

and the TCBR Class members that it would not mark-up their electrical costs and that Plaintiff and 

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the TCBR Class members would be charged the same amount by The Trust for electricity as if 

they had purchased that electricity directly from the local public utility provider. 

97. The Trust, at the direction of Simon, also put in the lease agreements provided to 

Plaintiff and the TCBR Class members a provision that the TCBR Class members waived their 

audit rights to review The Trust’s electric bills. Simon directed The Trust to insert this provision 

to insulate its illegal conduct from the scrutiny of Plaintiff and the TCBR Class members. 

98. The Trust breached the lease agreements with Plaintiff and the TCBR Class 

members by marking up their electrical costs and charging them more for electricity than The Trust 

actually paid the local electric utility for that same electricity. 

99. By marking up Plaintiff’s and the TCBR Class members’ electrical costs and 

charging them amounts in excess of what The Trust actually paid the electric utility for that same 

electricity, The Trust breached its lease agreements with Plaintiff and the TCBR Class members, 

resulting in damages to Plaintiff and the TCBR Class members. 

WHEREFORE, Plaintiff, on behalf of itself and all similarly situated individuals and 

entities, demands judgment against The Trust for compensatory damages, pre- and post-judgment 

interest, attorneys’ fees, costs incurred in bringing this action, and any other relief the Court deems 

just and proper. 

COUNT VI 

BREACH OF CONTRACT AND THE IMPLIED COVENANT OF GOOD FAITH 

AND FAIR DEALING 

THE TRUST 

(ON BEHALF OF THE TCBR CLASS) 

100. Plaintiff re-alleges and incorporates paragraphs 1 through 51 of this Complaint as 

if fully set forth herein. 

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101. The implied covenant of good faith and fair dealing applies to every contract and 

relates to an express term of a contract. 

102. The purpose of the implied duty of good faith is to protect the parties’ reasonable 

commercial expectations. The question arises when one party has a discretionary decision without 

defined standards. 

103. The Trust entered into lease agreements with Plaintiff and the members of the 

TCBR Class for the use of premises owned by The Trust for the purpose of retail sales and related 

services. 

104. In Plaintiff and the TCBR Class members’ lease agreements with respect to electric 

charges, The Trust expressly agreed that “Landlord may make electrical service available to the 

Premises . . . at the same cost as would be charged to Tenant from time to time by the utility 

company which otherwise would furnish such services to the Premises if it provided such services 

and metered the same directly to the Premises . . . ” Accordingly, The Trust promised Plaintiff 

and the TCBR Class members that it would not mark-up their electric costs and that Plaintiff and 

the TCBR Class would be charged by The Trust the same amount for electricity as if they were 

purchasing that electricity directly from the local electric utility. The Trust had an implied duty of 

good faith to charge the appropriate amount. 

105. The Trust also put in the lease agreements provided to Plaintiff and the TCBR Class 

members a provision that the TCBR Class members waived their audit rights to review The Trust’s 

electric bills. The Trust inserted this provision to insulate its illegal conduct from the scrutiny of 

Plaintiff and the TCBR Class members 

106. By charging Plaintiff and the TCBR Class amounts greater than what The Trust 

actually paid for the electricity, The Trust breached the implied covenant of good faith and fair 

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dealing attached to the terms of the contract. Accordingly, Plaintiff and the TCBR Class members 

suffered damages. 

WHEREFORE, Plaintiff, on behalf of itself and all similarly situated individuals and 

entities, demands judgment against The Trust for compensatory damages, pre- and post-judgment 

interest, attorneys’ fees, costs incurred in bringing this action, and any other relief the Court deems 

just and proper.

RELIEF REQUESTED 

Plaintiff respectfully requests that this Court: 

A. Certify this action as a class action under Federal Rule of Civil Procedure 23(a), 

(b)(2), and (b)(3); appoint Plaintiff the representative of the Nationwide Class, the Florida 

Statutory Class, and the TCBR Class; and appoint Buckner + Miles and Kelley Uustal as Class 

Counsel. 

B. Award Plaintiff and the Class all common law, compensatory, and special damages 

as well as restitution and statutory remedies for Simon, Simon Partnership, and M.S. Management 

and The Trust’s violations of law and breaches of contract, including pre- and post-judgment 

interest on these amounts. 

C. Award Plaintiff and the Class treble damages. 

D. Award Plaintiff and the Class their attorney’s fees, costs, and expenses. 

E. Award Plaintiff and the Class such further relief as is appropriate in the interests of 

justice. 

DEMAND FOR JURY TRIAL 

Plaintiff requests a jury trial on any and all counts for which trial by jury is permitted by 

law. 

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DATED: May 19, 2020 Respectfully submitted, 

BUCKNER + MILES 

By /s/ Seth Miles 

Seth Miles, Esq., FBN 385530 

David M. Buckner, Esq., FBN 60550 

Brett E. von Borke, Esq., FBN 0044802 

3350 Mary Street 

Coconut Grove, Florida 33133 

Telephone: 305.964.8003 

E-mail: david@bucknermiles.com 

E-mail: seth@bucknermiles.com 

E-mail: vonborke@bucknermiles.com 

Michael A. Hersh, Esq., FBN 56019 

Catherine Darlson, Esq., FBN 112440 

Kelley Uustal 

500 N. Federal Highway, Suite 200 

Fort Lauderdale, Florida 33301-1103 

Telephone: 954-522-6601 

E-mail: mah@kulaw.com 

E-mail: ccd@kulaw.com 

Counsel for Plaintiff and the Proposed Class 

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