UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 20-cv-23392-BLOOM/Louis

BRYON JACKSON and MARIO MENA, JR.,

Plaintiffs,

v.

ANHEUSER-BUSCH INBEV SA/NV, LLC

and MIAMI BEER VENTURES, LLC,

Defendants.

______________________________________/

OMNIBUS ORDER

THIS CAUSE is before the Court upon Defendants’ Anheuser-Busch Companies, LLC 

(“AB”) and Miami Beer Ventures, LLC’s (“MBV”) (collectively, “Defendants”) Motion to 

Dismiss Second Amended Complaint, ECF No. [65] (“Motion to Dismiss”), and Plaintiffs Byron 

Jackson and Mario Mena, Jr.’s (collectively, “Plaintiffs”) Motion for Leave to Amend Complaint, 

ECF No. [83] (“Motion to Amend”), (collectively, the “Motions”).1 The Court has carefully 

reviewed the Motions, all opposing and supporting submissions, the record in this case, the 

applicable law, and is otherwise fully advised. For the reasons set forth below, Defendants’ Motion 

to Dismiss is granted and Plaintiffs’ Motion to Amend is denied as moot.

I. BACKGROUND

Plaintiffs initiated this class action on August 14, 2020, see ECF No. [1], and filed an 

Amended Class Action Complaint for Injunctive and Other Relief against Defendants on August 

31, 2020, see ECF No. [17] (“FAC”). Plaintiffs assert claims based on Defendants’ alleged 

1 Plaintiffs also filed a Motion to Defer Ruling on Motion to Dismiss, ECF No. [80], pending their 

anticipated request for leave to amend their complaint, which is now moot.

Case 1:20-cv-23392-BB Document 114 Entered on FLSD Docket 08/18/2021 Page 1 of 43
Case No. 20-cv-23392-BLOOM/Louis

2

misrepresentations regarding their products. Specifically, Defendants operate the Veza Sur 

Brewing Company (“Veza Sur”), which they market as a craft brewery with Latin roots. Plaintiffs 

allege that Defendants misrepresent the authenticity and ownership of Veza Sur beer to deceive 

consumers into paying a price premium for products that consumers believe are made by an 

authentic, locally owned craft brewery, rather than by a subsidiary of the world’s largest brewer. 

Defendants moved to dismiss Plaintiffs’ FAC, arguing that the FAC failed to state a claim 

for relief on any count and that Plaintiffs lacked standing to seek injunctive relief. ECF No. [32]. 

The Court held a hearing on the motion to dismiss and granted the motion on the record. ECF No. 

[56]. At that hearing, the Court explained that the factual allegations in the FAC lacked the 

requisite specificity to survive dismissal but gave Plaintiffs the opportunity to cure these pleading 

deficiencies by amendment. Plaintiffs ultimately filed a Second Amended Class Action Complaint 

for Injunctive and Other Relief, attempting to correct the deficiencies noted by the Court, which is 

the operative pleading in this action. See ECF No. [58] (“SAC”). 

The SAC alleges the following facts: AB is one of the largest beer brewers in America and 

it owns dozens of different specialized brands of beer. Id. ¶ 1. In the midst of a booming craft beer 

market in the United States, AB took efforts to gain some of the market share of craft beer drinkers. 

Id. ¶¶ 9, 19-20. As such, in 2017, Defendants, along with a number of other corporate affiliates, 

opened a Miami-focused craft brewery, Veza Sur Brewing Company (“Veza Sur”). Id. ¶¶ 24-25. 

However, many craft beer enthusiasts prefer authentic, locally owned craft beer to beer brewed by 

large companies. Id. ¶¶ 14-18. The SAC includes a definition of “craft” that Plaintiffs believe 

controls in this case:

To qualify as a craft brewer per the Brewers Association (1) a brewery must 

produce six million barrels of beer or less annually; (2) less than 25 percent of the 

craft brewery can be owned or controlled—or equivalent economic interest—by a

Case 1:20-cv-23392-BB Document 114 Entered on FLSD Docket 08/18/2021 Page 2 of 43
Case No. 20-cv-23392-BLOOM/Louis

3

beverage alcohol industry member which is not itself a craft brewer, and (3) a TTB 

Brewer’s Notice must be present.

Id. ¶ 21. 

Because Plaintiffs’ understanding of a “craft brewer” is limited to small, local, 

independently owned breweries with ties to the local community, Plaintiffs allege that Defendants 

engaged in a series of false statements, misrepresentations, and omissions in an effort to deceive 

consumers into thinking Veza Sur is an authentic craft brewery with significant ties to Miami and 

Latin American roots. Id. ¶¶ 34-37. For example, although the fact that AB owns Veza Sur was 

reported on certain media outlets and was publicly available information, the SAC alleges that 

Defendants go to great lengths to omit any affiliation between AB and Veza Sur on Veza Sur’s 

website, in its marketing and advertising statements, on its social media, and in the brewery itself. 

See generally id. ¶¶ 27-43, 64, 67. Additionally, by referring to its beers as “craft” beers and by 

promoting a deep connection to Miami and to Latin American heritage, Plaintiffs allege that 

Defendants are attempting to deceive craft beer consumers by giving off the appearance that Veza 

Sur is an authentic craft brewery because Defendants know they can charge a premium for craft 

beers. Id. ¶¶ 51-61. 

The SAC also alleges that Defendants further misrepresent Veza Sur as being “Miami-born 

. . . with Latin-American roots,” and they include the slogan #HechaenMiami, which translates to 

“Made in Miami,” on the individual bottles of beer for sale, on the cartons, and in most, if not all, 

of their marketing and promotional materials. Id. ¶¶ 42-48. Despite this claimed connection to 

Miami, the SAC alleges that a portion of Veza Sur beer is brewed and bottled at a facility in Fort 

Pierce by Islamorada Brewing Company, LLC, rather than being brewed exclusively by Veza Sur 

at the Miami brewery. Id. ¶¶ 47-54. In light of this additional brewing facility, Plaintiffs allege that 

Case 1:20-cv-23392-BB Document 114 Entered on FLSD Docket 08/18/2021 Page 3 of 43
Case No. 20-cv-23392-BLOOM/Louis

4

certain portions of the labels on Veza Sur’s beer and their packaging are misleading or are entirely 

false, thus further contributing to consumer deception. Id.

The SAC further describes each named Plaintiff’s experience visiting Veza Sur’s brewery 

and consuming its beers at home. Id. ¶¶ 64-69. Plaintiffs each visited the Veza Sur brewery in 

Miami on numerous occasions, believing it to be a locally-owned, authentic, Miami craft brewery. 

Id. They also purchased Veza Sur beer from third-party retailers to drink at home based on this 

same mistaken belief. Id. Plaintiffs both allege that they were willing to pay a premium for these 

allegedly authentic crafted beers, and they did so to their detriment because of the 

misrepresentations, omissions, and false statements Defendants perpetuated to earn greater profits. 

Id.

In the SAC, Plaintiffs assert the following seven claims for relief: Count One2– Violations 

of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”), Fla. Stat. § 501.201, et 

seq.; Count Two – Fraudulent Misrepresentation; Count Three – Unjust Enrichment; Count Four 

– Breach of Express Warranty, Fla. Stat. § 672.313; Count Five – Breach of the Magnuson-Moss 

Warranty Act (“MMWA”), 15 U.S.C. § 2301, et seq.; Count Six – Negligent Misrepresentation; 

and Count Seven – Misleading Advertising, Fla. Stat. § 817.41. See generally id.

Defendants now file their Motion to Dismiss pursuant to Federal Rules of Civil Procedure 

12(b)(1) and 12(b)(6), arguing that the SAC should be dismissed with prejudice because Plaintiffs 

failed to cure the deficiencies noted by the Court at the hearing on the prior motion to dismiss, and 

Plaintiffs still lack standing to pursue injunctive relief. Plaintiffs oppose the Motion and have filed 

their Motion to Amend, seeking leave to file a third amended complaint to allege additional facts 

2 The Court notes that the counts in the SAC are misnumbered. For clarity in this Omnibus Order, the Court 

will refer to these counts as though they were correctly numbered, as set forth above.

Case 1:20-cv-23392-BB Document 114 Entered on FLSD Docket 08/18/2021 Page 4 of 43
Case No. 20-cv-23392-BLOOM/Louis

5

(but no new claims for relief) based on information that was uncovered during discovery in this 

case. Defendants oppose Plaintiffs’ request. 

II. LEGAL STANDARD

A. Lack of Standing Under Rule 12(b)(1)

One element of the case-or-controversy requirement under Article III of the United States 

Constitution is that plaintiffs “must establish that they have standing to sue.” Raines v. Byrd, 521 

U.S. 811, 818 (1997). It is a threshold question of “whether the litigant is entitled to have the court 

decide the merits of the dispute or of particular issues.” Sims v. Fla. Dep’t of Highway Safety & 

Motor Vehicles, 862 F.2d 1449, 1458 (11th Cir. 1989). “‘The law of Article III standing . . . serves 

to prevent the judicial process from being used to usurp the powers of the political branches,’ and 

confines the federal courts to a properly judicial role.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 

1547 (2016) (citing Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013); Warth v. Seldin, 422 

U.S. 490, 498 (1975)). Further, “standing requirements ‘are not mere pleading requirements but 

rather [are] an indispensable part of the plaintiff’s case.’” Church v. City of Huntsville, 30 F.3d 

1332, 1336 (11th Cir. 1994) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)). 

“Indeed, standing is a threshold question that must be explored at the outset of any case.” Corbett 

v. Transp. Sec. Admin., 930 F.3d 1225, 1232 (11th Cir. 2019) (citing Bochese v. Town of Ponce 

Inlet, 405 F.3d 964, 974 (11th Cir. 2005)), cert. denied, 140 S. Ct. 900 (2020). “In its absence, ‘a 

court is not free to opine in an advisory capacity about the merits of a plaintiff’s claim.’” Id.

(quoting Bochese, 405 F.3d at 974). “In fact, standing is ‘perhaps the most important jurisdictional’ 

requirement, and without it, [federal courts] have no power to judge the merits.” Id. (footnote 

omitted) (quoting Bochese, 405 F.3d at 974); see also Valley Forge Christian Coll. v. Ams. United 

Case 1:20-cv-23392-BB Document 114 Entered on FLSD Docket 08/18/2021 Page 5 of 43
Case No. 20-cv-23392-BLOOM/Louis

6

for Separation of Church & State, 454 U.S. 464, 472 (1982) (describing the standing requirements 

as “an irreducible minimum”). 

To establish standing under Article III, a plaintiff must allege that: (1) it “suffered an injury 

in fact that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or 

hypothetical;” (2) “the injury is fairly traceable to conduct of the defendant;” and (3) “it is likely, 

not just merely speculative, that the injury will be redressed by a favorable decision.” Kelly v. 

Harris, 331 F.3d 817, 819-20 (11th Cir. 2003). “The party invoking federal jurisdiction bears the 

burden of proving standing.” Fla. Pub. Int. Rsch. Grp. Citizen Lobby, Inc. v. E.P.A., 386 F.3d 

1070, 1083 (11th Cir. 2004)). “Because standing is jurisdictional, a dismissal for lack of standing 

has the same effect as a dismissal for lack of subject matter jurisdiction under Fed. R. Civ. P. 

12(b)(1).” Cone Corp. v. Fla. Dep’t of Transp., 921 F.2d 1190, 1203 n.42 (11th Cir. 1991). “If at 

any point in the litigation the plaintiff ceases to meet all three requirements for constitutional 

standing, the case no longer presents a live case or controversy, and the federal court must dismiss 

the case for lack of subject matter jurisdiction.” Fla. Wildlife Fed’n, Inc. v. S. Fla. Water Mgmt. 

Dist., 647 F.3d 1296, 1302 (11th Cir. 2011) (citing CAMP Legal Def. Fund, Inc. v. City of Atlanta, 

451 F.3d 1257, 1277 (11th Cir. 2006))). 

B. Failure to State a Claim Under Rule 12(b)(6)

Pursuant to Federal Rule of Civil Procedure 8(a)(2), a pleading in a civil action must 

contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. 

R. Civ. P. 8(a)(2). While a complaint “does not need detailed factual allegations,” it must set forth 

“more than labels and conclusions, and a formulaic recitation of the elements of a cause of action 

will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Ashcroft v. Iqbal, 556 

U.S. 662, 678 (2009) (explaining that Rule 8(a)(2) “demands more than an unadorned, theCase 1:20-cv-23392-BB Document 114 Entered on FLSD Docket 08/18/2021 Page 6 of 43
Case No. 20-cv-23392-BLOOM/Louis

7

defendant-unlawfully-harmed-me accusation”). Nor can a complaint rest on “‘naked assertion[s]’ 

devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 

557). “To 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.” Id. (internal quotation marks omitted).

[However, w]here a cause of action sounds in fraud, the allegations in a complaint 

must satisfy Federal Rule of Civil Procedure 9(b). Under Rule 9(b), “a party must 

state with particularity the circumstances constituting fraud or mistake”; although 

“conditions of a person’s mind,” such as malice, intent, and knowledge may be 

alleged generally. Fed. R. Civ. P. 9(b). To comply with Rule 9(b), a plaintiff must 

allege: “(1) the precise statements, documents, or misrepresentations made; (2) the 

time, place, and person responsible for the statement; (3) the content and manner in 

which these statements misled the Plaintiffs; and (4) what the defendants gained by 

the alleged fraud.” Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 

1380-81 (11th Cir. 1997) (per curiam) (citation omitted). In other words, a plaintiff 

is required to plead the “who, what, when, where, and how” pertaining to the 

underlying fraud. Garfield v. NDC Health Corp., 466 F.3d 1255, 1262 (11th Cir. 

2006) (citation omitted). At bottom, the purpose of particularity pleading is to alert 

defendants to their precise misconduct and protect them against baseless charges of 

fraudulent behavior. See Durham v. Bus. Mgmt. Assocs., 847 F.2d 1505, 1511 (11th 

Cir. 1988) (citation omitted).

Cardenas v. Toyota Motor Corp., 418 F. Supp. 3d 1090, 1098 (S.D. Fla. 2019).

As a general rule, when reviewing a motion to dismiss, a court must accept the plaintiff’s 

factual allegations as true and evaluate all plausible inferences derived from those facts in favor of 

the plaintiff. See Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012). “But if 

allegations are indeed more conclusory than factual, then the court does not have to assume their 

truth.” Id. at 1337 (citing Mamani v. Berzain, 654 F.3d 1148, 1153-54 (11th Cir. 2011)). “A facially 

plausible claim must allege facts that are more than merely possible.” Id. (quoting Iqbal, 556 U.S. 

at 678). Stated differently, “[a] claim has facial plausibility when the plaintiff pleads factual 

content that allows the court to draw the reasonable inference that the defendant is liable for the 

misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). Indeed, “[w]here 

a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of 

Case 1:20-cv-23392-BB Document 114 Entered on FLSD Docket 08/18/2021 Page 7 of 43
Case No. 20-cv-23392-BLOOM/Louis

8

the line between possibility and plausibility of entitlement to relief.’” Id. (quoting Twombly, 550 

U.S. at 556-57); see also id. at 679 (“[W]here the well-pleaded facts do not permit the court to 

infer more than the mere possibility of misconduct, the complaint has alleged—but it has not 

‘show[n]’—‘that the pleader is entitled to relief.’” (quoting Fed. R. Civ. P. 8(a)(2))).

Moreover, while courts are required to accept the factual allegations contained in the 

complaint and the attached exhibits as true, this tenet does not apply to legal conclusions. See id. 

at 678; see also Thaeter v. Palm Beach Cnty. Sheriff’s Off., 449 F.3d 1342, 1352 (11th Cir. 2006) 

(“When considering a motion to dismiss, all facts set forth in the plaintiff’s complaint ‘are to be 

accepted as true and the court limits its consideration to the pleadings and exhibits attached 

thereto.’” (quoting Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000))). 

Indeed, although courts “must make reasonable inferences in Plaintiffs’ favor, . . . [they] are not 

required to draw Plaintiffs’ inference.” Aldana v. Del Monte Fresh Produce, N.A., 416 F.3d 1242, 

1248 (11th Cir. 2005). “Likewise, ‘unwarranted deductions of fact’ are not admitted as true in a 

motion to dismiss.” Id. (quoting S. Fla. Water Mgmt. Dist. v. Montalvo, 84 F.3d 402, 408 n.10 

(11th Cir. 1996)). As such, where the plaintiffs “have not nudged their claims across the line from 

conceivable to plausible, their complaint must be dismissed.” Twombly, 550 U.S. at 570.

C. Leave to Amend Under Rules 15(a)(2) & 16(b)(4)

Generally, Federal Rule of Civil Procedure 15 governs amendments to pleadings. Apart 

from initial amendments that are permissible as a matter of course, “a party may amend its pleading 

only with the opposing party’s written consent or the court’s leave. The court should freely give 

leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). A litigant should be afforded the 

opportunity to test their claim on the merits as long as the underlying facts or circumstances may 

properly warrant relief. Foman v. Davis, 371 U.S. 178, 182 (1962). However, “[a] district court 

Case 1:20-cv-23392-BB Document 114 Entered on FLSD Docket 08/18/2021 Page 8 of 43
Case No. 20-cv-23392-BLOOM/Louis

9

need not . . . allow an amendment (1) where there has been undue delay, bad faith, dilatory motive, 

or repeated failure to cure deficiencies by amendments previously allowed; (2) where allowing 

amendment would cause undue prejudice to the opposing party; or (3) where amendment would 

be futile.” Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001). “[T]he grant or denial of an 

opportunity to amend is within the discretion of the District Court.” Foman, 371 U.S. at 182.

The Court of Appeals for the Eleventh Circuit has explained that “when a motion to amend 

is filed after a scheduling order deadline, Rule 16 is the proper guide for determining whether a 

party’s delay may be excused.” Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1418 n.2, 1419 (11th 

Cir. 1998). Rule 16 states that requests for leave to amend after the scheduling order deadline 

require a showing of “good cause.” Fed. R. Civ. P. 16(b)(4). “This good cause standard precludes 

modification unless the schedule cannot be met despite the diligence of the party seeking the 

extension.” Sosa, 133 F.3d at 1418 (internal quotation marks omitted); see also Smith v. Sch. Bd. 

of Orange Cnty., 487 F.3d 1361, 1366-67 (11th Cir. 2007) (holding that “where a party files an 

untimely motion to amend, [courts] must first determine whether the party complied with Rule 

16(b)’s good cause requirement,” before considering whether “justice so requires” allowing 

amendment). Moreover, a lack of diligence “is not limited to ‘a plaintiff who has full knowledge 

of the information with which it seeks to amend its complaint before the deadline passes’ but also 

includes ‘a plaintiff’s failure to seek the information it needs to determine whether an amendment 

is in order.’” De Varona v. Disc. Auto Parts, LLC, 285 F.R.D. 671, 673 (S.D. Fla. 2012) (quoting 

S. Grouts & Mortars, Inc. v. 3M Co., 575 F.3d 1235, 1241 n.3 (11th Cir. 2009)). If the party 

seeking relief “was not diligent, the [good cause] inquiry should end.” Sosa, 133 F.3d at 1418 

(quoting Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992)).

When a motion for leave to amend is filed after the scheduling order deadline, courts

Case 1:20-cv-23392-BB Document 114 Entered on FLSD Docket 08/18/2021 Page 9 of 43
Case No. 20-cv-23392-BLOOM/Louis

10

employ a two-step analysis. Sosa, 133 F.3d at 1419. First, the movant must demonstrate good 

cause under Rule 16(b). Good cause exists when “evidence supporting the proposed amendment 

would not have been discovered in the exercise of reasonable diligence until after the amendment 

deadline passed.” Donahay v. Palm Beach Tours & Transp., Inc., 243 F.R.D. 697, 699 (S.D. Fla. 

2007) (citation omitted). “[E]ven if the opposing party would not be prejudiced by the modification 

of a scheduling order, good cause is not shown if the amendment could have been timely made.” 

Id. In this regard, a court’s “evaluation of good cause [under Rule 16] is more stringent than its 

inquiry into the propriety of amendment under the more liberal Rule 15.” Id. (citing Sosa, 133 F.3d 

at 1418). Accordingly, “the likelihood of obtaining permission to amend diminishes drastically 

after the court enters a scheduling order with deadlines for amendments that have expired.” Id.

Next, the movant must establish that it acted diligently in seeking leave to amend. Courts 

consider three factors in assessing diligence: (1) whether the movant failed to ascertain facts prior 

to filing the pleading or failed to acquire information during the discovery period, (2) whether the 

information supporting the proposed amendment was available to the movant, and (3) whether the 

movant delayed in requesting leave to amend even after acquiring the information. See Sosa, 133 

F.3d at 1419. Moreover, a movant “must establish good cause for their delay in seeking to amend 

the pleadings after the Court’s deadline for amendment before the Court may consider whether to 

grant leave to amend under Rule 15.” Remington v. Newbridge Sec. Corp., No. 13-cv-60384, 2014 

WL 505153, at *12 (S.D. Fla. Feb. 7, 2014).

III. DISCUSSION

Defendants move to dismiss the SAC with prejudice because the SAC fails to state any 

viable claims for relief, and it fails to cure the deficiencies noted by the Court at the hearing on the 

prior motion to dismiss. They also contend that this Court lacks jurisdiction to hear Plaintiffs’ 

Case 1:20-cv-23392-BB Document 114 Entered on FLSD Docket 08/18/2021 Page 10 of 43
Case No. 20-cv-23392-BLOOM/Louis

11

Magnuson-Moss Warranty Act claim in Count VI. Finally, Defendants assert that Plaintiffs do not 

have standing to move for injunctive relief in Count I, as they have failed to allege any real threat 

of future harm. Plaintiffs oppose the Motion to Dismiss and argue that they have sufficiently pled 

each claim in their SAC. 

Plaintiffs have also moved to amend the SAC to allege additional facts that were uncovered 

during discovery. The Motion to Amend does not seek to assert new counts or add any additional 

defendants. Defendants, however, oppose the Motion to Amend because it is untimely, brought 

for an improper purpose, unduly prejudicial, and futile. 

The Court will address each Motion in turn. 

A. Defendants’ Motion to Dismiss

As discussed above, Defendants’ Motion to Dismiss argues that Plaintiffs have failed to 

state a claim in their SAC and have failed to cure the pleading deficiencies that the Court noted at 

the hearing on the prior motion. As such, Defendants contend that the SAC should be dismissed 

with prejudice. Plaintiffs maintain that they have clearly, specifically, and sufficiently set forth 

each claim for relief as the Court instructed. The Court will separately address the parties’ 

respective arguments on each individual count below, although not in the same order that they 

were raised in the briefing. 

1. Heightened Pleading Standard Under Rule 9(b)

In addition to the plausibility requirement under Rule 8(a), pleadings that assert claims 

sounding in fraud are also subject to a heightened pleading requirement under Rule 9(b): “In 

alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud 

or mistake.” Fed. R. Civ. P. 9(b). Rule 9(b) therefore requires that a plaintiff “offer more than mere 

conjecture,” U.S. ex rel. Clausen v. Lab’y Corp. of Am., Inc., 290 F.3d 1301, 1313 (11th Cir. 2002), 

Case 1:20-cv-23392-BB Document 114 Entered on FLSD Docket 08/18/2021 Page 11 of 43
Case No. 20-cv-23392-BLOOM/Louis

12

and “requires that a complaint plead facts giving rise to an inference of fraud,” W. Coast Roofing 

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

“Rule 9(b) is satisfied if the complaint sets forth (1) precisely what statements were made 

in what documents or oral representations or what omissions were made, and (2) the time and place 

of each such statement and the person responsible for making (or, in the case of omissions, not 

making) same, and (3) the content of such statements and the manner in which they misled the 

plaintiff, and (4) what the defendants obtained as a consequence of the fraud.” U.S. ex rel. Clausen, 

290 F.3d at 1310 (quoting Ziemba v. Cascade Int’l, Inc., 256 F.3d 1194, 1202 (11th Cir. 2001)); 

see also Garfield v. NDC Health Corp., 466 F.3d 1255, 1262 (11th Cir. 2006) (Rule 9(b) requires 

that the complaint state the “who, what, when, where, and how” of the alleged misconduct). 

“Furthermore, when multiple defendants are involved in the alleged fraud ‘the complaint must 

distinguish among defendants and specify their respective role in the alleged fraud.’” State Farm 

Mut. Auto. Ins. Co. v. Duval Imaging, LLC, No. 3:07-cv-627-J-20HTS, 2008 WL 11433206, at *1 

(M.D. Fla. Jan. 15, 2008) (quoting Am. Bank & Tr. v. Frogel, 726 F. Supp. 1292, 1294 (S.D. Fla. 

1989)). Nevertheless, “Rule 9(b) must be read in conjunction with Rule 8(a), which requires a 

plaintiff to plead only a short, plain statement of the grounds upon which he is entitled to relief.” 

Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1371 (11th Cir. 1997).

Rule 9(b)’s particularity requirement serves to “alert[] defendants to the precise misconduct 

with which they are charged and protect[] defendants against spurious charges of immoral and 

fraudulent behavior.” Zeimba, 256 F.3d at 1202 (internal quotation marks omitted); see also 

Haynes v. JPMorgan Chase Bank, N.A., 466 F. App’x 763, 765 (11th Cir. 2012) (same). 

“Essentially, the requirements of Rule 9(b) are satisfied if the complaint provides a reasonable 

delineation of the underlying acts and transactions allegedly constituting the fraud such that the 

Case 1:20-cv-23392-BB Document 114 Entered on FLSD Docket 08/18/2021 Page 12 of 43
Case No. 20-cv-23392-BLOOM/Louis

13

defendants have fair notice of the nature of plaintiff’s claim and the grounds upon which it is 

based.” U.S. ex rel. Heater v. Holy Cross Hosp., Inc., 510 F. Supp. 2d 1027, 1033 (S.D. Fla. 2007) 

(internal quotation marks omitted); see also Wagner v. First Horizon Pharm. Corp., 464 F.3d 

1273, 1277 (11th Cir. 2006) (“The rule ensures that the defendant has sufficient information to 

formulate a defense by putting it on notice of the conduct complained of[.]” (internal quotation 

marks omitted)); Antilles Trading Co., S.A. v. Scientific-Atlanta, Inc., 117 F.R.D. 447, 450 (N.D. 

Ga. 1986) (“[I]n considering a motion to dismiss for failure to plead fraud with particularity, a 

court must carefully consider whether the goals of Rule 9(b) will be advanced”). In other words, 

“[T]his particularity requirement is satisfied if the complaint alleges facts as to time, place, and 

substance of the defendant’s alleged fraud, specifically the details of the defendants’ allegedly 

fraudulent acts, when they occurred, and who engaged in them.” Medimport S.R.L. v. Cabreja, 929 

F. Supp. 2d 1302, 1318 (S.D. Fla. 2013).

Plaintiffs assert numerous claims of fraud, which must adhere to Rule 9(b)’s heightened 

pleading standards—namely, Count Two – Fraudulent Misrepresentation,3 Count Six – Negligent 

Misrepresentation,4and Count Seven – Misleading Advertising.5 On each of these claims, Rule 

3

“A claim for fraudulent inducement is [] subject to Rule 9(b) heightened pleading standards.” Begualg 

Inv. Mgmt. Inc. v. Four Seasons Hotel Ltd., No. 10-22153-CIV, 2011 WL 4434891, at *4 (S.D. Fla. Sept. 

23, 2011); see also Brady v. Medtronic, Inc., No. 13-62199-CIV, 2015 WL 11181971, at *2 (S.D. Fla. Mar. 

30, 2015) (same); Adler v. WestJet Airlines, Ltd., 31 F. Supp. 3d 1381, 1386 (S.D. Fla. 2014) (same).

4

“Rule 9(b)’s heightened pleading standard [also] applies to negligent misrepresentation claims asserted 

under Florida law because such claims sound in fraud.” Wilding v. DNC Servs. Corp., 941 F.3d 1116, 1127 

(11th Cir. 2019) (internal quotation marks and citations omitted); see also State Farm Fire & Cas. Co. v. 

Kelgard as Tr. of Sheryl E. Kelgard Revocable Tr., No. 19-cv-62355, 2020 WL 5018162, at *2 (S.D. Fla. 

Mar. 27, 2020) (“[C]laims for negligent misrepresentation and [] claims for fraudulent inducement must be 

pled according to the heightened pleading standard of Rule 9(b).”); Ostreyko v. B.C. Morton Org., Inc., 310 

So. 2d 316, 318 (Fla. 3d DCA 1975) (“In this state, a negligent misrepresentation is considered tantamount 

to actionable fraud.”).

5

“A claim for false and misleading advertising is also subject to Rule 9(b) heightened pleading standards.” 

Begualg Inv. Mgmt. Inc., 2011 WL 4434891, at *4; see also Smith v. Mellon Bank, 957 F.2d 856, 858 (11th 

Case 1:20-cv-23392-BB Document 114 Entered on FLSD Docket 08/18/2021 Page 13 of 43
Case No. 20-cv-23392-BLOOM/Louis

14

9(b) requires that Plaintiffs “specifically alleg[e] more than the vague and conclusory statement 

that they were induced by the misrepresentation” to withstand a motion to dismiss for failure to 

state a claim. Hillcrest Pac. Corp. v. Yamamura, 727 So. 2d 1053, 1057 (Fla. 3d DCA 1995). In 

addition, as explained more fully below, the Court concludes that the FDUTPA claim in Count 

One and the unjust enrichment claim in Count Three must also satisfy Rule 9(b)’s particularity 

requirements. See Wagner v. First Horizon Pharm. Corp., 464 F.3d 1273, 1278 (11th Cir. 2006) 

(holding that plaintiffs must plead non-fraud claims with particularity when those claims are based 

on defendants’ alleged fraudulent conduct); Space Coast Credit Union v. Merrill Lynch, Pierce, 

Fenner & Smith Inc., 295 F.R.D. 540, 545 (S.D. Fla. 2013) (“Here, every claim asserted . . . is 

subject to Rule 9(b)’s heightened pleading standards for fraud. All of the claims for relief—even 

those that do not require proof of fraudulent intent—are based on alleged fraudulent 

representations and omissions that Defendants made . . . . Therefore, Rule 9(b) and the policies 

supporting it require [the plaintiff] to plead these claimed fraudulent acts with particularity.”). 

Regarding Count One, Rule 9(b)’s particularity requirement applies to the FDUTPA claim.

It is worth noting that courts in this Circuit are split on the issue of whether FDUTPA claims are 

categorically excluded from Rule 9(b)’s requirements or are subject to those requirements only 

when they sound in fraud. “Recently, however, it appears that a trend has emerged: Absent an 

allegation of fraudulent conduct, a FDUTPA claim does not need to meet Rule 9(b)’s heightenedpleading requirement.” Total Containment Sols., Inc. v. Glacier Energy Servs., Inc., No. 2:15-cv63-FtM-38CM, 2015 WL 3562622, at *2 (M.D. Fla. June 5, 2015). Conversely, because FDUTPA 

Cir. 1992) (“In order to prove a violation of Section 817.41, Florida law requires the plaintiff to prove 

reliance on the alleged misleading advertising, as well as each of the other elements of the common law 

tort of fraud in the inducement.”); Simpson v. FWM Laboratories, Inc., No. 09-61771-CIV, 2010 WL 

1257714, at *2, *4 (S.D. Fla. March 29, 2010) (applying Rule 9(b) and noting that “Plaintiff’s [misleading 

advertising] claim is considered one for fraudulent inducement.”).

Case 1:20-cv-23392-BB Document 114 Entered on FLSD Docket 08/18/2021 Page 14 of 43
Case No. 20-cv-23392-BLOOM/Louis

15

claims uniquely sound in both tort and fraud, courts have regularly required that such claims satisfy 

the heightened standard under Rule 9(b). See Koch v. Royal Wine Merchs., Ltd., 847 F. Supp. 2d 

1370, 1381 (S.D. Fla. 2012); see also Blair v. Wachovia Mortg. Corp., No. 5:11-cv-566-Oc37TBS, 2012 WL 868878, at *3 (M.D. Fla. Mar. 14, 2011). Here, the Court finds that Plaintiffs’ 

allegations sound primarily in fraud and they must therefore be subject to Rule 9(b)’s heightened 

pleading requirements. See Librizzi v. Ocwen Loan Servicing, LLC, No. 15-60107-CIV, 2015 WL 

4761647, at *9 (S.D. Fla. Aug. 13, 2015) (finding Rule 9 to apply to FDUTPA claim where 

defendant had violated FDUTPA “through deception”); see also USA Nutraceuticals Grp. v. BPI 

Sports, LLC, No. 15-cv-80352, 2016 WL 4254257, at *3 (S.D. Fla. Feb. 16, 2016).

Similarly, with regard to Count Three, the Court finds that the unjust enrichment claim is 

also subject to the Rule 9(b) pleading requirements because it arises out of alleged fraudulent 

conduct. See U.S. Stepe v. RS Compounding LLC, 325 F.R.D. 699, 710 (M.D. Fla. 2017); see also

W.W. Sports Importadora Exportadora e Comercial Ltda v. BPI Sports, LLC, No. 0:16-cv-60147, 

2016 WL 9375202, at *4 (S.D. Fla. Aug. 11, 2016) (unjust enrichment claim premised on 

fraudulent conduct subject to Rule 9(b) heightened particularity requirement); Allstate Indem. Co. 

v. Fla. Rehab & Injury Ctrs. Longwood, Inc., No. 6:15-cv-1740-Orl-41GJK, 2016 WL 7177624, 

at *3 (M.D. Fla. July 26, 2016) (stating that the unjust enrichment claim sounded in fraud “and 

must, therefore, meet the heightened pleading standards as set forth in Federal Rule of Civil 

Procedure 9”); Mazzeo v. Nature’s Bounty, Inc., No. 14-60580-CIV, 2014 WL 5846735, at *1 

(S.D. Fla. Nov. 12, 2014) (“[I]t appears to be the rule that a claim for unjust enrichment is subject 

to Rule 9(b) only if it is premised on fraud.”). 

2. Florida Deceptive and Unfair Trade Practices Act

Turning to the merits of the Motion, Defendants first argue that Plaintiffs have failed to 

Case 1:20-cv-23392-BB Document 114 Entered on FLSD Docket 08/18/2021 Page 15 of 43
Case No. 20-cv-23392-BLOOM/Louis

16

adequately plead their FDUTPA claim in Count One. Defendants contend that the SAC fails to 

specifically allege any actionable misrepresentations or omissions upon which Plaintiffs’ claim 

could lie and that, regardless, FDUTPA’s safe harbor precludes Plaintiffs’ claim here. Defendants 

also argue that Plaintiffs lack standing to pursue a claim for injunctive relief in Count One because 

Plaintiffs fail to allege any concrete, ongoing threat of future injury. Because the alleged lack of 

standing presents a threshold jurisdictional question, the Court addresses it first before proceeding 

to Defendants’ substantive challenges to Count One.

a. Standing to Seek Injunctive Relief

Defendants argue that Plaintiffs cannot seek injunctive relief under their FDUTPA claim 

because they have failed to sufficiently allege any possibility of future harm for Article III 

standing. As noted above, one element of the case-or-controversy requirement under Article III of 

the United States Constitution is that plaintiffs “must establish that they have standing to sue.” 

Raines, 521 U.S. at 818. To demonstrate standing under Article III, a plaintiff must show that: 

“(1) he has suffered an injury in fact that is (a) concrete and particularized and (b) actual or 

imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to conduct of the 

defendant; and (3) it is likely, not just merely speculative, that the injury will be redressed by a 

favorable decision.” Kelly, 331 F.3d at 819-20; see also Dermer v. Mia.-Dade Cnty., 599 F.3d 

1217, 1220 (11th Cir. 2010) (“Standing for Article III purposes requires a plaintiff to provide 

evidence of an injury in fact, causation and redress[a]bility.”). 

The allegations necessary to establish standing depend on the type of relief 

sought. To establish standing when seeking retrospective relief, a plaintiff must 

show that he has suffered “an invasion of a legally protected interest” that is both 

“concrete and particularized” and “actual or imminent, not ‘conjectural’ or 

‘hypothetical.’” Lujan, 504 U.S. at 560. But if a plaintiff seeks prospective relief, 

such as a declaratory judgment, he must “allege facts from which it appears there 

is a substantial likelihood that he will suffer injury in the future.” Malowney v. Fed. 

Collection Deposit Grp., 193 F.3d 1342, 1346 (11th Cir. 1999) (citing City of Los 

Case 1:20-cv-23392-BB Document 114 Entered on FLSD Docket 08/18/2021 Page 16 of 43
Case No. 20-cv-23392-BLOOM/Louis

17

Angeles v. Lyons, 461 U.S. 95, 102 (1983)). And that future injury must be “real,” 

“immediate,” and “definite.” Id. at 1347.

Mack v. USAA Cas. Ins. Co., 994 F.3d 1353, 1356-57 (11th Cir. 2021). 

“‘The party invoking federal jurisdiction bears the burden of establishing’ standing,” 

Clapper, 568 U.S. at 411-12 (quoting Lujan, 504 U.S. at 561), and “a plaintiff must demonstrate 

standing for each claim he seeks to press and for each form of relief that is sought,” Davis v. Fed. 

Election Comm’n, 554 U.S. 724, 734 (2008) (internal quotation marks omitted) (quoting 

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006)). In other words, “[t]hat a plaintiff has 

standing to bring one claim does not save another claim for which he does not; ‘standing is not 

dispensed in gross.’” Mack, 994 F.3d at 1356 (quoting Lewis v. Casey, 518 U.S. 343, 358 n.6 

(1996)); see also Davis, 554 U.S. at 733-34.

In addition, “[b]ecause injunctions regulate future conduct, a party has standing to seek 

injunctive relief only if the party alleges . . . a real and immediate—as opposed to a merely 

conjectural or hypothetical—threat of future injury.” Wooden v. Bd. of Regents of Univ. Sys. of 

Ga., 247 F.3d 1262, 1284 (11th Cir. 2001) (emphasis in original). “A determination that a plaintiff 

has standing to seek damages does not ensure that the plaintiff can also seek injunctive . . . relief.” 

Marty v. Anheuser-Busch Companies, 43 F. Supp. 3d 1333, 1352 (S.D. Fla. 2014) (quoting Clark 

v. City of Lakewood, 259 F.3d 996, 1006 (9th Cir. 2001)). “[A] plaintiff seeking injunctive relief 

‘must show a sufficient likelihood that he will be affected by the allegedly unlawful conduct in the 

future.’” Hous. v. Marod Supermarkets, Inc., 733 F.3d 1323, 1328-29 (11th Cir. 2013) (quoting 

Wooden, 247 F.3d at 1284).

As such, Plaintiffs’ “standing to seek the injunction requested depend[s] on whether [they 

are] likely to suffer future injury.” Id. at 1334 (quoting Lyons, 461 U.S. at 105). Indeed, although 

FDUTPA allows a plaintiff to pursue injunctive relief, “it cannot supplant Constitutional standing 

Case 1:20-cv-23392-BB Document 114 Entered on FLSD Docket 08/18/2021 Page 17 of 43
Case No. 20-cv-23392-BLOOM/Louis

18

requirements. Article III of the Constitution requires that a plaintiff seeking injunctive relief allege 

a threat of future harm.” Dapeer v. Neutrogena Corp., 95 F. Supp. 3d 1366, 1373 (S.D. Fla. 2015) 

(internal citation omitted). In order to have standing to seek injunctive relief, a plaintiff must allege 

an intent to resume purchasing the products at issue in the future. See Wasser v. All Mkt., Inc., No. 

16-21238-CIV, 2017 WL 11139701, at *6 (S.D. Fla. Nov. 13, 2017); cf. Ohio State Troopers 

Ass’n, Inc. v. Point Blank Enters., Inc., 347 F. Supp. 3d 1207, 1228 (S.D. Fla. 2018) (collecting 

cases holding that plaintiffs lacked standing for FDUTPA injunctive relief where they did not 

allege an intent to purchase the product again); Cox v. Porsche Fin. Servs., Inc., 337 F.R.D. 426, 

434 (S.D. Fla. 2020) (“plaintiffs alleging FDUTPA violations in . . . [will] not have Article III 

standing to pursue injunctive relief where they fail[] to allege an intent to purchase the defendant’s 

products in the future” (citing In re Monat Hair Care Prod. Mktg., Sales Practices, & Prod. Liab.

Litig., No. 18-md-02841, 2019 WL 5423457, at *5 (S.D. Fla. Oct. 23, 2019))).

Here, the SAC sets forth the following allegations on Plaintiffs’ threat of future injury: 

Based on Defendants’ misrepresentations and claims, BYRON JACKSON 

purchased beer that had less value than what he paid, perpetuated the 

misrepresentation to friends, and has suffered legally cognizable damages 

proximately caused by Defendant’s misrepresentations and false advertising. After 

learning the truth about A-B’s mislabeling of Veza Sur, BYRON JACKSON 

stopped visiting the brewery and purchasing it at retailers. However, BYRON 

JACKSON would resume visiting the brewery and resume purchasing Veza Sur in 

the future if he learns that it is accurately labeled.

ECF No. [58] ¶ 65.

Based on Defendants’ representations and claims, MARIO MENA, JR. purchased 

beer that had less value than what he paid, perpetuated the misrepresentation to 

friends, and has suffered legally cognizable damages proximately caused by 

Defendant’s misconduct. After learning the truth about A-B’s mislabeling of Veza 

Sur, MARIO MENA, JR. stopped visiting the brewery and purchasing it at retailers. 

However, MARIO MENA, JR. would resume visiting the brewery and resume 

purchasing Veza Sur in the future if he learns that it is accurately labeled.

ECF No. [58] ¶ 67. 

Case 1:20-cv-23392-BB Document 114 Entered on FLSD Docket 08/18/2021 Page 18 of 43
Case No. 20-cv-23392-BLOOM/Louis

19

These allegations, taken as true, demonstrate that Plaintiffs face a reasonable threat of 

future harm if the deceptive and unfair trade practices continue. Indeed, when coupled with 

Defendants’ alleged ongoing pattern of misrepresentations, omissions, and deceit, the Court finds 

that there is a real and immediate possibility that Plaintiffs will be harmed again in the future. 

Therefore, the Court is satisfied that Plaintiffs have established Article III standing for the purpose 

of seeking injunctive relief. See Wasser, 2017 WL 11139701, at *6 (“Here, the Plaintiffs 

specifically allege the continued use by All Market of the misleading packaging and that they will 

purchase the product in the future, thus allowing for the distinct possibility of future harm.”). 

b. Failure to State a Claim Under FDUTPA 

Defendants also argue that the Court should dismiss Plaintiffs’ FDUTPA claim because, 

despite being granted an opportunity to amend the FAC to cure the pleading deficiencies,

Plaintiffs’ have yet again failed to allege facts relating to Defendants’ misrepresentations or 

omissions with the requisite particularity under Rule 9(b). Likewise, Defendants assert that 

Plaintiffs have failed to sufficiently allege a FDUTPA claim because neither calling Veza Sur a 

“craft” brewery, nor omitting any information about AB’s corporate affiliation with Veza Sur 

would mislead a reasonable consumer. Rather, Defendants note that AB’s ownership of Veza Sur 

has been widely publicized since the brewery’s inception, which Plaintiffs seem to acknowledge 

in the SAC. See ECF No. [58] at 6-7 (discussing news articles and press releases on AB’s 

ownership of Veza Sur). Defendants further assert that none of the statements on Veza Sur’s 

packaging, labeling, or online marketing and advertising are deceitful or untruthful. At most, they 

argue, these statements are nonactionable puffery that do not rise to the level of being deceptive 

or misleading. Nevertheless, Defendants argue that FDUTPA’s safe harbor provision precludes 

any finding of liability based on Veza Sur’s labeling because these labels are specifically required 

Case 1:20-cv-23392-BB Document 114 Entered on FLSD Docket 08/18/2021 Page 19 of 43
Case No. 20-cv-23392-BLOOM/Louis

20

by federal law and have been approved for use by the United States Treasury’s Alcohol and 

Tobacco Tax & Trade Bureau (“TTB”). The Court addresses each of these arguments below.

FDUTPA “protect[s] the consuming public and legitimate business enterprises from those 

who engage in unfair methods of competition, or unconscionable, deceptive, or unfair acts or 

practices in the conduct of any trade or commerce.” See Fla. Stat. § 501.202(2); see also Point 

Conversions, LLC v. WPB Hotel Partners, LLC, --- So. 3d ---, No. 4D19-3017, 2021 WL 2213304, 

at *6 (Fla. 4th DCA 2021). Under FDUTPA, a claim for damages has three elements: “(1) a 

deceptive act or unfair practice; (2) causation; and (3) actual damages.” Rollins, Inc. v. Butland, 

951 So. 2d 860, 869 (Fla. 2d DCA 2006). 

[FDUTPA] applies to “unfair or deceptive acts or practices” in “trade or 

commerce.” Fla. Stat. § 501.204(1). “Trade or commerce” is defined as “the 

advertising, soliciting, providing, offering, or distributing, whether by sale, rental, 

or otherwise, of any good or service, or any . . . thing of value.” Fla. Stat. § 

501.203(8). An “unfair practice” is “one that ‘offends established public policy’ 

and one that is ‘immoral, unethical, oppressive, unscrupulous or substantially 

injurious to consumers.’” PNR, Inc. v. Beacon Prop. Mgmt., 842 So. 2d 773, 777 

(Fla. 2003) (quoting Samuels v. King Motor Co., 782 So. 2d 489, 499 (Fla. [4th 

DCA] 2001)). A “deceptive act” occurs when there is a “representation, omission, 

or practice that is likely to mislead the consumer acting reasonably in the 

circumstances, to the consumer’s detriment.” Id. at 777. 

Alhassid v. Nationstar Mortg. LLC, 771 F. App’x 965, 969 (11th Cir. 2019). 

Regarding the first element of a FDUTPA claim, the only element subject to challenge in 

the Motion to Dismiss, “deception may be accomplished by innuendo” and through omissions, 

“rather than outright false statements.” State Farm Mut. Auto. Ins. Co. v. Performance 

Orthopaedics & Neurosurgery, LLC, 278 F. Supp. 3d 1307, 1327 (S.D. Fla. 2017) (quoting 

Millennium Commc’ns & Fulfillment, Inc. v. Off. of Att’y Gen., Dep’t of Legal Affs., State of Fla., 

761 So. 2d 1256, 1264 (Fla. 3d DCA 2000) (“Millennium”)). “Under Florida law, an objective test 

is employed in determining whether the practice was likely to deceive a consumer acting 

reasonably. That is, ‘[a] party asserting a deceptive trade practice claim need not show actual 

Case 1:20-cv-23392-BB Document 114 Entered on FLSD Docket 08/18/2021 Page 20 of 43
Case No. 20-cv-23392-BLOOM/Louis

21

reliance on the representation or omission at issue.’” Carriuolo v. Gen. Motors Co., 823 F.3d 977, 

983-84 (11th Cir. 2016) (quoting Davis v. Powertel, Inc., 776 So. 2d 971, 973 (Fla. 1st DCA 

2000)). “The deception must be ‘probable, not possible,’ and must be likely to cause injury to a 

reasonably relying consumer.” Molina v. Aurora Loan Servs., LLC, 635 F. App’x 618, 627 (11th 

Cir. 2015); see also Millennium, 761 So. 2d at 1263 (applying Federal Trade Commission 

interpretation and noting that the standard is “likely to mislead,” not “tendency and capacity to 

mislead”).6

“In determining whether a representation is likely to mislead consumers acting reasonably, 

courts consider the net impression created.” FTC v. RCA Credit Servs., LLC, 727 F. Supp. 2d 1320, 

1329 (M.D. Fla. 2010) (emphasis added). “If the statements are ‘likely to mislead reasonable 

consumers,’ then it makes no difference if the statements are ‘technically or literally true.’” Zamber 

v. Am. Airlines, Inc., 282 F. Supp. 3d 1289, 1299 (S.D. Fla. 2017) (quoting FTC v. Peoples Credit 

First, LLC, 244 F. App’x 942, 944 (11th Cir. 2007)); see also Coleman v. CubeSmart, 328 F. Supp. 

3d 1349, 1361 (S.D. Fla. 2018). This standard applies regardless of whether a plaintiff is 

proceeding individually or as part of a class action. See Latman v. Costa Cruise Lines, N.V., 758 

So. 2d 699 (Fla. 3d DCA 2000) (“[M]embers of a class proceeding under [FDUTPA] need not 

individually prove reliance on the alleged misrepresentations. It is sufficient if the class can 

establish that a reasonable person would have relied on the representations.”).

FDUTPA also contains a so-called “safe harbor” provision, which precludes liability for 

“[a]n act or practice required or specifically permitted by federal or state law.” Fla. Stat. 

§ 501.212(1); Kuenzig v. Hormel Foods Corp., 505 F. App’x 937, 939 (11th Cir. 2013). “The safe6 FDUTPA incorporates the standards on unfairness and deception that are issued pursuant to the Federal 

Trade Commission Act, 15 U.S.C. § 41, et seq. See Fla. Stat. § 501.203(3); see also Fla. Stat. § 501.204(2) 

(stating that, when construing “unlawful acts and practices,” “great weight shall be given to the 

interpretations of the Federal Trade Commission and the federal courts pursuant to 15 U.S.C. § 45(a)(1).”).

Case 1:20-cv-23392-BB Document 114 Entered on FLSD Docket 08/18/2021 Page 21 of 43
Case No. 20-cv-23392-BLOOM/Louis

22

harbor provision applies to acts that are required or permitted not only by statutes but also by 

regulatory action.” Pye v. Fifth Generation, Inc., No. 4:14cv493-RH/CAS, 2015 WL 5634600, at 

*3 (N.D. Fla. Sep. 23, 2015) (citations omitted); see also Hauser v. Steward Melbourne Hosp., 

Inc., No. 6:19-cv-1150-Orl-41EJK, 2020 WL 917259, at *2 (M.D. Fla. Feb. 11, 2020). 

The safe harbor does not exist merely because state or federal law does not prohibit 

an act or practice. Dep’t of Legal Affairs v. Father & Son Moving & Storage, Inc., 

643 So. 2d 22, 24 (Fla. 4th DCA 1994). A defendant must establish the safe harbor’s 

applicability. Marty v. Anheuser-Busch Cos., LLC, 43 F. Supp. 3d 1333, 1344 (S.D. 

Fla. 2014). Whether the safe harbor applies may be decided as a matter of law. See, 

e.g., Prohias v. AstraZeneca Pharms., L.P., 958 So. 2d 1054, 1056 (Fla. 3d DCA 

2007); Prohias v. Pfizer, Inc., 490 F. Supp. 2d 1228, 1234 (S.D. Fla. 2007).

Casey v. Fla. Coastal Sch. of L., Inc., No. 3:14-cv-1229-J-39PDB, 2015 WL 10096084, at *6-7 

(M.D. Fla. Aug. 11, 2015), report and recommendation adopted, 2015 WL 10818746 (M.D. Fla. 

Sept. 29, 2015). 

i. Heightened Pleading Requirements

As explained above, because Plaintiffs’ FDUTPA claim sounds in fraud, the Rule 9(b) 

heightened pleading requirements apply. See PB Prop. Mgmt., Inc. v. Goodman Mfg. Co., No. 

3:12-cv-1366-J-20JBT, 2013 WL 12172912, at *6 (M.D. Fla. Aug. 28, 2013) (“FDUTPA claims 

that hinge on allegations of misrepresentation are ‘grounded in fraud’ and are therefore governed 

by Rule 9(b)’s heightened pleading requirements.” (collecting cases)). 

“Rule 9(b) is satisfied if the complaint sets forth (1) precisely what statements were 

made in what documents or oral representations or what omissions were made, and 

(2) the time and place of each such statement and the person responsible for making 

(or, in the case of omissions, not making) same, and (3) the content of such 

statements and the manner in which they misled the plaintiff, and (4) what the 

defendants obtained as a consequence of the fraud.”

State Farm Mut. Auto. Ins. Co. v. Advantacare of Fla., LLC, No. 6:19-cv-1837-Orl-41LRH, 2020 

WL 2630226, at *5 (M.D. Fla. May 22, 2020). 

Case 1:20-cv-23392-BB Document 114 Entered on FLSD Docket 08/18/2021 Page 22 of 43
Case No. 20-cv-23392-BLOOM/Louis

23

Defendants first argue that Plaintiffs have again failed to state a claim under FDUTPA 

because they have not alleged specific and detailed facts regarding Defendants’ alleged deceitful 

misrepresentations and omissions to satisfy Rule 9(b). Indeed, Defendants correctly note that, 

although this Court discussed the lack of particularity in the FAC in detail with Plaintiffs at the 

hearing on the Defendants’ prior motion to dismiss, many of the allegations in Plaintiffs’ SAC 

suffer from the same issues. For example, the SAC contains almost five pages worth of allegations 

describing each Plaintiff’s individual experiences with Veza Sur’s brewery, its marketing 

materials, and its bottled beers that were purchased at third-party retailers for consumption at 

home. See ECF No. [58] at 13-18. In recounting these experiences and interactions, Plaintiffs omit 

the “who, what, when, where, and how” of Defendants’ alleged misconduct, despite Rule 9(b)’s 

requirements and this Court’s instructions at the hearing. See Garfield, 466 F.3d at 1262; see also

U.S. ex rel. Matheny v. Medco Health Sols., Inc., 671 F.3d 1217,1222 (11th Cir. 2012) (“The 

particularity requirement of Rule 9(b) is satisfied if the complaint alleges facts as to time, place, 

and substance of the defendant’s alleged fraud, specifically the details of the defendants’ allegedly 

fraudulent acts, when they occurred, and who engaged in them.”). 

Instead, Plaintiffs present broad, generalized statements about Veza Sur’s “misleading 

advertisements” on Instagram and on signs in the Wynnwood area, unspecified conversations with 

Veza Sur staff about the creators’ backgrounds, “marketing and information provided to patrons” 

suggesting that Veza Sur was a local craft brewery, and Defendants’ “misrepresentations and 

omissions” which led them to believe Veza Sur was authentic and locally owned craft brewery. 

See, e.g., ECF No. [58] ¶¶ 64, 67. Moreover, Plaintiffs’ allegations regarding Veza Sur’s deceptive 

bottle labels and their allegedly misleading statements on their website do not absolve them of 

their pleading requirements under Rule 9(b). Indeed,

Case 1:20-cv-23392-BB Document 114 Entered on FLSD Docket 08/18/2021 Page 23 of 43
Case No. 20-cv-23392-BLOOM/Louis

24

[a]lthough the [SAC] alleges facts as to the substance of Defendants’ alleged 

misrepresentations and concealments, it fails to allege with specificity the time at 

which they occurred. The [SAC] does not, for example, state when Plaintiff viewed 

the alleged misrepresentations on Defendants’ website, or even whether it—or any 

other consumer—viewed them at all before purchasing the allegedly defective 

products.

PB Prop. Mgmt., Inc., 2013 WL 12172912, at *7 (citation omitted). The SAC’s generalized 

allegations regarding Defendants’ misrepresentations and omissions fail to provide Defendants or 

this Court with any detailed and particularized facts from which to infer a plausible claim sounding 

in fraud. See Certain Underwriters at Lloyd’s of London v. Black Gold Marine, Inc., No. 19-cv23586, 2021 WL 2653819, at *3 (S.D. Fla. Feb. 8, 2021) (explaining that the allegation that the 

third-party defendant “‘engaged in unfair practices by manufacturing the Vessel’ which proved to 

be unsuitable for the purposes it was advertised for” fell short of satisfying Rule 9(b)’s requirement 

of pleading FDUTPA claims with specificity”). As Plaintiffs failed to cure these pleading 

deficiencies, despite being given the opportunity to do so, the Court concludes that the FDUTPA 

claim in Count One is due to be dismissed on this basis alone. 

ii. FDUTPA Safe Harbor Provision

The Court next turns to Defendants’ arguments that the safe harbor provision should apply 

because the TTB has reviewed and approved Veza Sur’s beer bottle labels for use and they satisfy 

the federal labeling requirements for malt beverages. The TTB is charged with creating and 

enforcing federal regulations on alcoholic beverages in order to prevent consumer deception. See

27 U.S.C. §§ 201-219 (“Federal Alcohol Administration Act” or the “FAAA”). For domestic beers

such as Veza Sur, TTB regulations require that:

On labels of containers of domestic malt beverages there shall be stated the name 

of the bottler or packer and the place where bottled or packed. The bottler's or 

packer’s principal place of business may be shown in lieu of the actual place where 

bottled or packed if the address shown is a location where bottling or packing 

operation takes place. The appropriate TTB officer may disapprove the listing of a 

Case 1:20-cv-23392-BB Document 114 Entered on FLSD Docket 08/18/2021 Page 24 of 43
Case No. 20-cv-23392-BLOOM/Louis

25

principal place of business if its use would create a false or misleading impression 

as to the geographic origin of the beer.

27 C.F.R. § 7.25(a)(1). 

In addition, federal regulations governing the labeling requirements for malt beverages 

contain multiple consumer protection provisions, which prohibit engaging in labeling practices 

that could deceive consumers or otherwise cause confusion. See 27 C.F.R. §§ 7.20, 7.21, 7.29. 

Nonetheless, these regulations allow the use of the “name or trade name of the brewer” on bottle

labels, containers, and/or cartons. See 27 C.F.R. §§ 25.142(a), 25.143(a). Furthermore, Florida law 

permits the use of a fictitious name in conducting business within this State long as the fictitious 

name is properly registered with the Florida Division of Corporations ahead of time. See generally

Fla. Stat. § 865.09. 

Importantly, in order to avoid the distribution of alcoholic beverages that violate federal

labeling requirements, the FAAA requires that a bottler or packer apply for and obtain a

“Certificate of Label Approval” (“COLA”) prior to the use of any new labeling. See 27 U.S.C. 

§ 205(e); 27 C.F.R. § 7.41(a). The TTB only grants approval of a label upon making a 

determination that the submission “complies with applicable laws and regulations.” 27 C.F.R. 

§ 13.21(a). The parties agree that Veza Sur’s Spanglish Latin Lager label, which is pictured in the 

SAC, was approved by the TTB through the COLA process.7 Plaintiffs, however, dispute the 

import of this approval as it relates to the instant FDUTPA claim.

7 The Court previously granted Defendants’ Unopposed Request for Judicial Notice in Support of their 

Motion to Dismiss Second Amended Complaint, ECF No. [63], and took judicial notice of a copy of the 

COLA issued by the TTB for Veza Sur’s Spanglish Latin Lager beer and of records from the Florida 

Department of State pertaining to the registration of Veza Sur Brewing Co. as a fictitious name to be used 

by MBV and Islamorada Brewing Company, LLC (“Islamorada”). See ECF Nos. [62-2], [62-3], & [62-4]. 

Because Plaintiffs neither objected to these materials nor challenged their authenticity, the Court properly 

considers them in resolving the Motion to Dismiss. 

Case 1:20-cv-23392-BB Document 114 Entered on FLSD Docket 08/18/2021 Page 25 of 43
Case No. 20-cv-23392-BLOOM/Louis

26

Upon review, the Court agrees with Defendants that the FDUTPA safe harbor provision 

applies because the TTB-approved Spanglish label represents an act or practice that is “required 

or specifically permitted by federal . . . law.” Fla. Stat. § 501.212(1). Indeed, the Court finds no 

merit to Plaintiffs’ argument that Defendants intentionally omitted any mention of MBV and/or 

Islamorada on the Spanglish label in order to deceive consumers. Rather, the information included 

on this label satisfied the labeling requirements under federal law and, as noted above, the use of 

fictitious names, such as “Veza Sur Brewing Co.,” during the daily business operations is permitted 

under Florida law. Similarly, to the extent that Plaintiffs assert that Defendants had additional 

obligations, beyond those imposed by the TTB and the federal regulations, to disclose AB, MBV, 

and/or Islamorada as relevant entities on their labels, the Court finds that this position is wholly 

unsupported. Moreover, the photograph of a Spanglish bottle in the SAC demonstrates that 

Defendants accurately disclosed both the Miami brewery location and the Fort Pierce bottling 

location on their packaging.

The fact that Veza Sur successfully obtained the TTB’s approval of its Spanglish label

further supports the application of the FDUTPA safe harbor provision in this case. Notably, courts 

across the country have come to different conclusions on whether the COLA process is sufficient 

to trigger the applicable safe harbor provisions under state consumer protection laws. However, a 

court in the Northern District of Florida previously held that the safe harbor provision under 

FDUTPA applied where the allegedly deceptive packaging had received a COLA from the TTB. 

See Pye, 2015 WL 5634600, at *4. The Court finds the reasoning in Pye persuasive and the same 

result is warranted here. Indeed, “the TTB, a regulator charged with ensuring that the 

representations on the [Veza Sur] label are not misleading, has approved the use” of the phrases, 

fictitious names, and brewing locations listed on Defendants’ Spanglish label. Id. Thus, as in in 

Case 1:20-cv-23392-BB Document 114 Entered on FLSD Docket 08/18/2021 Page 26 of 43
Case No. 20-cv-23392-BLOOM/Louis

27

Pye, the safe harbor provision applies to this claim because “[t]he use of [the approved] terms is 

specifically permitted by federal law within the meaning of Florida Statutes § 501.212.” Id. As 

such, the Motion to Dismiss is granted on Plaintiffs’ FDUTPA claim based on the TTB-approved 

labels.

iii. Representations Regarding “Craft” Beer and Ties to Miami

Defendants also argue that the FDUTPA claim should be dismissed because Plaintiffs fail 

to state a viable claim based on the statement that Veza Sur is a “Miami-born craft brewery with 

Latin-American roots.” Specifically, Defendants state that calling Veza Sur beer “craft” beer is not 

inherently deceptive. They further argue that the statements regarding Veza Sur’s ties to Miami

cannot form the basis for a FDUTPA claim because these statements are true and are puffery. 

Plaintiffs respond that Defendants misrepresent the nature of the beer Veza Sur sells and the 

location in which it is made. These misrepresentations, according to Plaintiffs, are intended to 

deceive consumers into purchasing Veza Sur beer at a higher price because they believe it is 

authentic craft beer.

Upon review, the Court finds that Plaintiffs have failed to state a FDUTPA claim based on 

the representation that Veza Sur is a Miami-born craft brewery. Initially, the Court notes that the 

National Brewer’s Association’s definition of craft beer is but one definition of a term that is 

otherwise widely used and well known in day-to-day conversation. However, what a certain 

individual might determine to qualify as “craft” beer is necessarily a subjective one, depending on 

the individual’s tastes and interests. Moreover, describing craft beer as “authentic” adds yet 

another layer of subjective variation to the meaning. As such, the Court does not find that 

Defendants’ use of the term “craft” beer in Veza Sur’s marketing suggests a per se deceptive 

misrepresentation. 

Case 1:20-cv-23392-BB Document 114 Entered on FLSD Docket 08/18/2021 Page 27 of 43
Case No. 20-cv-23392-BLOOM/Louis

28

Similarly, Defendants’ statements that the Veza Sur brand is “Miami-born” or “Made in 

Miami” are not likely to deceive a reasonable consumer that the beers are locally made because 

Veza Sur beer is, in fact, brewed in part in Miami at its original location. Indeed, the fact that the 

Miami brewery produces a portion of Veza Sur’s beer, in addition to the Fort Pierce brewery, 

makes the facts of this case distinguishable from the cases relied upon by Plaintiffs that address 

deceptive labeling on points of origin. See ECF No. [75] at 7-9. Thus, a reasonable consumer is 

unlikely to be deceived by the factually accurate representation that Veza Sur beer is brewed at its 

original Miami location. Likewise, Veza Sur’s use of hashtag slogan #HechaenMiami, which 

translates to “Made in Miami,” is also unlikely to be deceptive as hashtags are social media 

marketing tools that streamline data categorization. Thus, in the Court’s view, this hashtag slogan 

is more akin to “puffery” than a statement of fact that could deceive a reasonable consumer. See 

Monster Energy Co. v. Vital Pharms., Inc., No. EDCV 18-1882 JGB SHKx, 2019 WL 2619666, 

at *12 (C.D. Cal. May 20, 2019) (“‘Puffery’ typically involves making ‘generalized statements,’ 

not making specific claims, or making claims ‘so exaggerated as to preclude reliance by 

consumers.’” (quoting Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 

246 (9th Cir. 1990))).

* * *

In sum, the Court finds that Plaintiffs have failed to sufficiently plead their FDUTPA claim 

with the requisite specificity, that the labeling and marketing employed is not likely to deceive a 

reasonable consumer, and that the safe harbor provision applies to bar liability on Defendants’ 

TTB-approved labels.

Case 1:20-cv-23392-BB Document 114 Entered on FLSD Docket 08/18/2021 Page 28 of 43
Case No. 20-cv-23392-BLOOM/Louis

29

3. Fraudulent Misrepresentation, Negligent Misrepresentation, and Misleading 

Advertising

As with the FDUTPA claim above, Defendants also argue that this Court should dismiss 

each of the various theories of fraud asserted in Count Two (fraudulent misrepresentation), Count 

Six (negligent misrepresentation), and Count Seven (misleading advertising) because Plaintiffs

have failed to allege any materially false statements attributable to the Defendants, whether they 

be through the Veza Sur labels, packaging, internet advertising, etc., that were untrue or materially 

false. Additionally, Defendants note that dismissal of these fraud-based claims is warranted 

because, as pled, the SAC fails to comply with the dictates of Rule 9(b), given the absence of any 

factual specificity or particularity as to the alleged fraudulent conduct. Plaintiffs, however, respond 

that the SAC sufficiently alleges the claims of fraud with particularity. Because these causes of 

action all involve similar elements and are each subject to the heightened pleading requirements 

of Rule 9(b), the Court will address these claims together. 

To assert a viable cause of action for fraudulent misrepresentation under Florida law, a 

plaintiff must establish the following four elements: “(1) a false statement concerning a material 

fact; (2) the representor’s knowledge that the representation is false; (3) an intention that the 

representation induce another to act on it; and (4) consequent injury by the party acting in reliance 

on the representation.” Jovine v. Abbott Lab’ys, Inc., 795 F. Supp. 2d 1331, 1338 (S.D. Fla. 2011) 

(quoting Johnson v. Davis, 480 So. 2d 625, 627 (Fla. 1985)). “In certain circumstances, ‘[f]raud 

also includes the intentional omission of a material fact.’” State Farm Mut. Auto. Ins. Co. v. 

Performance Orthopaedics & Neurosurgery, LLC, 278 F. Supp. 3d 1307, 1317 (S.D. Fla. 2017)

(quoting Ward v. Atl. Sec. Bank, 777 So. 2d 1144, 1146 (Fla. 3d DCA 2001)).

Case 1:20-cv-23392-BB Document 114 Entered on FLSD Docket 08/18/2021 Page 29 of 43
Case No. 20-cv-23392-BLOOM/Louis

30

Similarly, to state a claim for negligent misrepresentation in Florida, a plaintiff must allege: 

(1) a misrepresentation of a material fact; (2) that the defendant made the representation without 

knowledge as to its truth or falsity, or under circumstances in which he ought to have known of its 

falsity; (3) that the defendant intended that the misrepresentation induce another to act on it; (4) 

injury must result to the party acting in justifiable reliance on the misrepresentation. Souran v. 

Travelers Ins. Co., 982 F.2d 1497, 1503 (11th Cir. 1993).

Finally, to assert a claim for misleading advertising under § 817.41, Fla. Stat., a plaintiff 

must plead that: “(1) the representor made a misrepresentation of a material fact; (2) the representor 

knew or should have known of the falsity of the statement; (3) the representor intended that the 

representation would induce another to rely and act on it; and (4) the plaintiff suffered injury in

justifiable reliance on the representation.” Colonial Van Lines, Inc. v. Colonial Moving & Storage, 

LLC, No. 20-cv-61255, 2020 WL 6700449, at *4 (S.D. Fla. Oct. 20, 2020). 

Each of these causes of action sound in fraud and is subject to the heightened pleading 

requirements of Rule 9(b), which requires specific allegations regarding “(1) the precise 

statements, documents, or misrepresentations made; (2) the time, place, and person responsible for 

the statement; (3) the content and manner in which these statements misled the [p]laintiff[]; and 

(4) what the defendants gained by the alleged fraud.” Am. Dental Ass’n v. Cigna Corp., 605 F.3d 

1283, 1291 (11th Cir. 2010). “[B]are allegation[s] of reliance on alleged misrepresentations, bereft 

of any additional detail, will not suffice under Rule 9(b).” Wilding v. DNC Servs. Corp., 941 F.3d 

1116, 1128 (11th Cir. 2019). 

Plaintiffs argue that they have alleged sufficient facts to establish that Defendants 

intentionally withheld and omitted certain information about the Veza Sur brand from its website, 

brewery premises, and packaging in order to attract consumers who are willing to pay premiums 

Case 1:20-cv-23392-BB Document 114 Entered on FLSD Docket 08/18/2021 Page 30 of 43
Case No. 20-cv-23392-BLOOM/Louis

31

for what they believe to be authentic, local craft beer. For example, Plaintiffs note that Defendants 

deliberately omitted all information regarding AB’s affiliation with Veza Sur from the brewery’s 

website, its marketing campaigns, and its Miami brewery location. Likewise, the SAC alleges that 

labeling Veza Sur beers as “craft” beers was a knowingly false statement intended to induce 

customers to pay premiums for Defendants’ products. Furthermore, Plaintiffs allege that 

Defendants also misrepresented the true nature of Veza Sur’s operations by suggesting that the 

brewery was a small, locally owned and operated, independent business based solely out of Miami, 

when in reality it is a “macrobrew, [AB] owned brand” with a separate bottling operation in Fort 

Pierce and no local ties to the community. ECF No. [58] ¶ 60. 

Upon review of the allegations in the SAC, the Court concludes that Plaintiffs have failed 

to allege with any degree of specificity the precise fraudulent conduct or material 

misrepresentation at issue. Just as the Court has determined that Plaintiffs’ FDUTPA claim must 

be dismissed for failing to meet the heightened pleading requirements for fraud, so too must the 

fraud-based claims in Counts Two, Six, and Seven be dismissed. See Merch. One, Inc. v. TLO, 

Inc., No. 19-cv-23719, 2020 WL 248608, at *6-7 (S.D. Fla. Jan. 16, 2020) (“Here, while 

Plaintiff[s] provide[] some examples of what [they] contend[] constitute fraudulent statements 

made by Defendants, the Complaint fails to satisfy the requirements of Rule 9(b) because 

Plaintiff[s] must set forth precisely each statement alleged to be fraudulent.”). Indeed, Plaintiffs’ 

generalized allegations regarding the misrepresentations made by Defendants fail to satisfy the 

requirements of Rule 9(b) because Plaintiffs do not allege any details about when Defendants made 

each misrepresentation, or the manner in which they made these misrepresentations to Plaintiffs. 

See Triton II, LLC v. Randazzo, No. 18-cv-61469, 2018 WL 4932342, at *5 (S.D. Fla. Oct. 10, 

Case 1:20-cv-23392-BB Document 114 Entered on FLSD Docket 08/18/2021 Page 31 of 43
Case No. 20-cv-23392-BLOOM/Louis

32

2018); Llano Funding Grp. v. Cassidy, No. 14-cv-62863, 2015 WL 4698407, at *4-5 (S.D. Fla. 

Aug. 6, 2015). 

Likewise, Plaintiffs appear to argue that Defendants had a duty to disclose their ownership 

of Veza Sur, yet they present no basis for any such duty. “Fraud based upon a failure to disclose 

material information exists only when there is a duty to make such a disclosure.” Garofalo v. 

Proskauer Rose LLP, 253 So. 3d 2, 7 (Fla. 4th DCA 2018) (citing Friedman v. Am. Guardian 

Warranty Servs., Inc., 837 So. 2d 1165, 1166 (Fla. 4th DCA 2003)). The threshold question of 

whether one has a duty to disclose is a matter of law to be decided by the court. Id. Accordingly, 

the Court concludes that Plaintiffs’ fraud claims in Counts Two, Six, and Seven must be dismissed 

as they have not been pled with particularity as required by Rule 9(b). 

4. Breach of Express Warranty

Defendants also seek dismissal of Count Four, which asserts a claim for breach of express 

warranty pursuant to § 672.313, Fla. Stat., arguing that Plaintiffs have failed to sufficiently allege 

the necessary elements of that claim, including privity. Defendants also argue that the SAC 

contains no allegations regarding any express warranties Defendants made, and references to Veza 

Sur’s ties to Miami and its Latin American roots cannot form the basis of an express warranty 

claim because they amount to puffery and sales talk. Plaintiffs respond that the breach of express 

warranty claim is sufficiently pled by pointing to specific allegations in the Complaint describing 

Veza Sur as a small, local Miami-based craft brewery. 

To state a cause of action for breach of an express warranty under Florida’s 

U.C.C., the plaintiff “must allege: (1) the sale of goods; (2) the express warranty; 

(3) breach of the warranty; (4) notice to seller of the breach; and (5) the injuries 

sustained by the buyer as a result of the breach of the express warranty.” Jovine v. 

Abbott Labs., Inc., 795 F. Supp. 2d 1331, 1339-40 (S.D. Fla. 2011) (citing DunhamBush, Inc. v. Thermo-Air Serv., Inc., 351 So. 2d 351, 353 (Fla. 4th DCA 1977)). An 

express warranty may arise by words or conduct. Miles v. Kavanaugh, 350 So. 2d 

Case 1:20-cv-23392-BB Document 114 Entered on FLSD Docket 08/18/2021 Page 32 of 43
Case No. 20-cv-23392-BLOOM/Louis

33

1090, 1093 (Fla. 3d DCA 1977). Florida’s U.C.C. specifies three circumstances 

under which an express warranty may arise.

Armadillo Distr. Enters., Inc. v. Hai Yun Musical Instruments Manufacture Co., 142 F. Supp. 3d 

1245, 1253-54 (M.D. Fla. 2015). 

Section 672.313, Florida Statutes, governs the formation of express warranties by sellers:

(1) Express warranties by the seller are created as follows:

(a) Any affirmation of fact or promise made by the seller to the buyer which 

relates to the goods and becomes part of the basis of the bargain creates an 

express warranty that the goods shall conform to the affirmation or promise.

(b) Any description of the goods which is made part of the basis of the bargain 

creates an express warranty that the goods shall conform to the description.

(c) Any sample or model which is made part of the basis of the bargain creates 

an express warranty that the whole of the goods shall conform to the sample 

or model.

(2) It is not necessary to the creation of an express warranty that the seller use 

formal words such as “warrant” or “guarantee” or that the seller have a specific 

intention to make a warranty, but an affirmation merely of the value of the goods 

or a statement purporting to be merely the seller’s opinion or commendation of the 

goods does not create a warranty.

Fla. Stat. § 672.313.

A claim for a breach of warranty is essentially a breach of contract claim, and “[a]t a 

minimum, a claim for breach of contract must identify the actual terms of the contract allegedly 

breached.” Toca v. Tutco, LLC, 430 F. Supp. 3d 1313, 1324 (S.D. Fla. 2020). “[A]n express 

warranty is generally considered to arise only where the seller asserts a fact of which the buyer is 

ignorant prior to the beginning of the transaction, and on which the buyer justifiably relies as part 

of the ‘basis of the bargain.’” Id. at 1324-25 (internal citations omitted) (quoting Thursby v. 

Reynolds Metals Co., 466 So. 2d 245, 250 (Fla. 1st DCA 1984)). “Statements made in promotional 

materials, advertisements, and brochures may be sufficient to create an express warranty if the 

buyer relies on those statements in making his purchase[,]” but “mere puffery or sales talk is not 

Case 1:20-cv-23392-BB Document 114 Entered on FLSD Docket 08/18/2021 Page 33 of 43
Case No. 20-cv-23392-BLOOM/Louis

34

sufficient to create an express warranty.” Carter v. Ford Motor Co., No. 19-cv-62646, 2021 WL 

1165248, at *18 (S.D. Fla. Mar. 26, 2021) (quoting Aprigliano v. Am. Honda Motor Co., Inc., 979 

F. Supp. 2d 1331, 1341 (S.D. Fla. 2013)); see also Carter Hawley Hale Stores, Inc. v. Conley, 372 

So. 2d 965, 969 (Fla. 3d DCA 1979) (“[C]ertain affirmations of the seller amount only to ‘puffing’ 

and do not give rise to warranties, e.g., the ‘nicest car in town.’”); see also Wasser v. Sasoni, 652 

So. 2d 411, 412 (Fla. 3d DCA 1995) (finding a seller’s representations that a building was “a very 

good building” and “an excellent deal” were “clearly statements of opinion” and not actionable).

Plaintiffs cite the same factual allegations in the SAC that form the basis of their other 

claims in an effort to demonstrate what specific express warranties were given. Yet, Plaintiffs’ 

claim is insufficiently pled because, aside from stating that the beers failed to conform to the 

affirmations given, Plaintiffs fail to identify which warranties were breached. This is woefully 

insufficient to state a claim for breach of an express warranty. See Certain Underwriters at Lloyd’s 

of London v. Black Gold Marine, Inc., No. 19-cv-23586, 2021 WL 2653819, at *3 (S.D. Fla. Feb. 

8, 2021) (concluding that the third-party plaintiff had failed to state a claim for breach of express 

warranty because the “Third-Party Complaint [did] not identify what express warranties the ThirdParty Defendants made, or even which warranties were breached”). 

Further, to the extent that the breach of express warranty claim is based upon Veza Sur’s 

statements that it is “Miami-born,” the Court is unpersuaded that these statements are sufficient to 

give rise to an express warranty. Indeed, as discussed above, Veza Sur’s original brewery was, in 

fact, “born in Miami,” and it continues to operate its brewing operation at that Miami location, 

despite also having a location in Fort Pierce for bottling and brewing. Thus, to the extent Plaintiffs 

contend that the breach of express warranty stems from Veza Sur’s representations that it has ties 

to Miami, the Court reiterates that these statements are factually accurate and cannot therefore 

Case 1:20-cv-23392-BB Document 114 Entered on FLSD Docket 08/18/2021 Page 34 of 43
Case No. 20-cv-23392-BLOOM/Louis

35

form the basis of a breach. Furthermore, as noted above, Veza Sur’s use of the hashtag slogan 

#HechaenMiami is more akin to puffery. Similarly, designating Veza Sur’s beers as “authentic 

craft beers” is a term that is subject to widely varying interpretations. As such, the Court concludes 

that the allegations in the SAC fail to sufficiently state a claim on Count Four for breach of an 

express warranty because the statements that Plaintiffs allege served as the parties’ express 

warranties can be construed as a “mere opinion[s] or commendation[s]” creating no express 

warranty. See Thursby v. Reynolds Metals Co., 466 So. 2d 245, 250 (Fla. 1st DCA 1984).

5. Breach of the Magnuson-Moss Warranty Act

Next, Defendants contend that this Court does not have jurisdiction to hear Plaintiffs’ 

MMWA claim under Count Five. The MMWA allows Plaintiffs to bring suit: “(A) in any court of 

competent jurisdiction in any State or the District of Columbia; or (B) in an appropriate district 

court of the United States, subject to paragraph (3) of this subsection.” 15 U.S.C. § 2310(d)(1). 

Paragraph (3), in turn, states that “[n]o claim shall be cognizable in a suit brought under paragraph 

(1)(B) of this subsection—if the action is brought as a class action, and the number of named 

plaintiffs is less than one hundred.” Id. § 2310(d)(3)(C). In the Motion to Dismiss, Defendants 

argue that this class action has less than 100 plaintiffs, and the plain statutory language of 

§ 2310(d)(3)(C) therefore precludes Plaintiffs from pursuing their MMWA claim in Count Five. 

The Court acknowledges that there is a split of authority on how the MMWA’s 

jurisdictional and numerosity requirements affect the Class Action Fairness Act (“CAFA”), 28 

U.S.C. § 1332(d), which the Eleventh Circuit has not yet addressed. Compare Floyd v. Am. Honda 

Motor Co., 966 F.3d 1027, 1035 (9th Cir. 2020), and Ware v. Best Buy Stores, L.P., --- F.4th ---, 

No. 20-1641, 2021 WL 3197520, at *4 (7th Cir. July 29, 2021), with Kuns v. Ford Motor Co., 543 

F. App’x 572, 575 (6th Cir. 2013). Nevertheless, another district court in the Southern District 

Case 1:20-cv-23392-BB Document 114 Entered on FLSD Docket 08/18/2021 Page 35 of 43
Case No. 20-cv-23392-BLOOM/Louis

36

thoroughly addressed this issue earlier this year, and the Court finds its reasoning to be persuasive 

here. See Lewis v. Mercedes-Benz USA, LLC, --- F. Supp. 3d ---, No. 19-cv-81220, 2021 WL 

1216897, at *9 (S.D. Fla. Mar. 30, 2021). Relying in part on the Court of Appeals for the Ninth 

Circuit’s recent opinion in Floyd, the district court in Lewis explained that

“Construing CAFA to provide jurisdiction over MMWA claims despite Plaintiffs’ 

failure to satisfy the plain-language requirement of at least one hundred named

plaintiffs would have the effect of overriding a part of the MMWA.” [Floyd, 966 

F.3d at 1035]. But the Supreme Court has cautioned that “the legislature’s intent to 

repeal a statute must be ‘clear and manifest.’” Id. (quoting Nat’l Ass’n of Home 

Builders v. Defenders of Wildlife, 551 U.S. 644, 662 (2007)). The Court agrees that 

“CAFA does not demonstrate any intent by Congress to repeal or alter parts of the 

MMWA’s jurisdictional requirements[,]” id., especially considering that CAFA 

relates to diversity jurisdiction, whereas jurisdiction under the MMWA is a matter 

of federal question jurisdiction. See MacDougall v. Am. Honda Motor Co., Inc., 

No. 17-01079, 2017 WL 8236359, at *4 (C.D. Cal. Dec. 4, 2017) (“CAFA—a basis 

for federal courts to exercise jurisdiction over state law disputes between diverse 

parties—doesn’t fill in the gaps for missing substantive requirements of a federal 

law.”).

Id. (emphasis added). The court in Lewis ultimately held that it lacked subject-matter jurisdiction 

to hear the MMWA claims. 

The Court agrees with the reasoning in Lewis and finds that class action plaintiffs asserting 

claims under the MMWA must satisfy the additional jurisdictional requirements set forth in 

§ 2310(d)(3)(D). Plaintiffs in this case are the only two “named plaintiffs” for the purposes of the 

MMWA’s jurisdictional limitation, which is fatal to their claim. See 15 U.S.C. § 2310(d)(3)(C). 

As such, the Court grants Defendants’ Motion to Dismiss on Count Five because it lacks subjectmatter jurisdiction over Plaintiffs’ MMWA claim.8

8 Even assuming, however, that this Court had jurisdiction over the MMWA claim, it would still be subject 

to dismissal. Indeed, a claim under the MMWA can only exist where there is a viable state law claim for 

breach of express warranty. See Cardenas, 418 F. Supp. 3d at 1110-11 (“Here, Cardenas’s breach of implied 

warranty claim has been dismissed; thus, his correlating Magnuson-Moss Warranty Act claim must also be 

dismissed.”); Melton v. Century Arms, Inc., 243 F. Supp. 3d 1290, 1304 (S.D. Fla. 2017) (“[A] MagnusonMoss Warranty Act claim only exists if a valid breach of warranty claim is also stated.” (citing Bailey v. 

Case 1:20-cv-23392-BB Document 114 Entered on FLSD Docket 08/18/2021 Page 36 of 43
Case No. 20-cv-23392-BLOOM/Louis

37

6. Unjust Enrichment

Finally, Defendants argue that the unjust enrichment claim in Count Three, which is pled 

in the alternative to the breach of express warranty claim, must also be dismissed. Defendants 

contend that it is duplicative of the claims arising at law and there was no inequitable retention of 

benefits where Plaintiffs received the value of the beers they purchased. Plaintiffs respond that, 

under Florida law, an unjust enrichment count pled in the alternative to a count for breach of 

express warranty will survive dismissal where the parties dispute the existence of an express 

warranty. They also note that the SAC sets forth clear allegations that Plaintiffs paid a premium 

for Veza Sur beer, which they believed was authentic craft beer, and that it would be unjust for 

Defendants to retain that benefit. 

To assert a claim for unjust enrichment under Florida law, a plaintiff must establish the 

following three elements: “(1) plaintiff has conferred a benefit on the defendant, who has 

knowledge thereof; (2) defendant voluntarily accepts and retains the conferred benefit; and (3) the 

circumstances are such that it would be inequitable for the defendant to retain the benefit without 

paying the value thereof to the plaintiff.” Merino v. Ethicon Inc., No. 20-cv-25308, 2021 WL 

1749967, at *13 (S.D. Fla. May 4, 2021) (quoting Sierra Equity Grp., v. White Oak Equity 

Partners, LLC, 650 F. Supp. 2d 1213, 1229 (S.D. Fla. 2009)). Moreover, as explained above, 

Monaco Coach Corp., 168 F. App’x 893, 894 n.1 (11th Cir. 2006)); Burns v. Winnebago Indus., Inc., No. 

8:11-cv-354-T-24-TBM, 2012 WL 171088, at *4 (M.D. Fla. Jan. 20, 2012) (“Because Plaintiffs’ breach of 

express warranty claim under Florida’s UCC fails, their breach of express warranty claim under the 

MMWA necessarily fails also.”), aff’d, 492 F. App’x 44 (11th Cir. 2012); Hunter v. Marlow Yachts, Ltd., 

Inc., No. 8:09-cv-1772-T-TBM, 2011 WL 3794674, at *7 (M.D. Fla. Aug. 26, 2011) (stating that the 

MMWA claim was dependent upon a sustainable state law claim for breach of warranty); Ocana v. Ford 

Motor Co., 992 So. 2d 319, 323 (Fla. 3d DCA 2008) (stating that whether there has been a breach of a 

limited express warranty under the MMWA is governed by state law). Because the Court determined that 

Plaintiffs’ state law claim for breach of express warranty must be dismissed, Plaintiffs’ express warranty 

claim under the MMWA would also fail.

Case 1:20-cv-23392-BB Document 114 Entered on FLSD Docket 08/18/2021 Page 37 of 43
Case No. 20-cv-23392-BLOOM/Louis

38

because Plaintiffs’ unjust enrichment count sounds in fraud, it is subject to Rule 9(b)’s heightened 

plausibility standard. See U.S. Stepe, 325 F.R.D. at 710. 

The Court concludes that the unjust enrichment claim in Count Three is subject to dismissal 

because, as with Plaintiffs’ claims under FDUTPA, fraudulent misrepresentation, negligent 

misrepresentation, and misleading advertising, Plaintiffs fail to allege the “misrepresentations and 

omissions” that form the basis for their unjust enrichment claim with sufficient particularity. 

Without detailed factual allegations regarding the nature of these misrepresentations, as required 

under Rule 9(b), Plaintiffs fail to sufficiently allege a basis for the inequitable retention of a benefit 

conferred. Davis v. Fresh Mkt., Inc., No. 19-cv-24245, 2020 WL 3489369, at *4 (S.D. Fla. June 

26, 2020) (“Finally, to succeed in an unjust enrichment claim, a plaintiff must establish the 

existence of circumstances under which ‘it would be inequitable for the defendants to retain [a 

benefit conferred by the Plaintiff] without paying the value thereof.’” (quoting Virgilio v. Ryland 

Grp., Inc., 680 F.3d 1329, 1337 (11th Cir. 2012))). Therefore, the Court grants Defendants’ Motion 

to Dismiss as to Count Three. See BPI Sports, LLC, 2016 WL 9375202, at *4-5 (dismissing unjust 

enrichment count for failing to satisfy Rule 9(b) heightened pleading requirements regarding 

fraudulent conduct at issue); see also W.W. Sports Importadora Exportadora e Comercial LTDA 

v. BPI Sports, LLC, No. 16-cv-60147, 2016 WL 11504100, at *4 (S.D. Fla. Aug. 11, 2016) (same).

B. Plaintiffs’ Motion to Amend

In their Motion to Amend, Plaintiffs request leave to file a Third Amended Class Action 

Complaint for Injunctive and Other Relief, ECF No. [83-1] (“TAC”), to allege additional facts that 

were revealed during discovery regarding the relationship between AB and Veza Sur. These facts, 

Plaintiffs contend, will provide further support for their existing claims and will clarify the extent 

Case 1:20-cv-23392-BB Document 114 Entered on FLSD Docket 08/18/2021 Page 38 of 43
Case No. 20-cv-23392-BLOOM/Louis

39

of Defendants’ efforts to deceive consumers about the Veza Sur brand. Specifically, Plaintiffs 

request leave to amend to include the following additional allegations: 

27. [AB] created an internal group that identified South-Eastern Latinx 

millennial consumers as a target audience for craft beer. 

28. [AB] conducted market research and determined that marketing to 

Latinx millennials based on their Latinx identity created a negative brand inference 

as millennial and Generation Z Latinx consumers do not want to be pandered to 

because of their heritage. 

29. [AB] determined through market research that authenticity, localness, 

and small size of breweries were essential characteristics for Latinx millennial 

consumers to determine a brewery is “craft” to induce purchases. 

30. During the internal process to create this brand targeted specifically at 

Latinx millennials, [AB] purchased the brand “Spanglish” to speed up the opening 

process and add authenticity to further deceive consumers. 

31. The employees tasked with managing Veza Sur advised it would be 

better to “separate” [AB’s] participation from the brewery to better appeal to 

consumers of craft beer. 

32. Despite the purported “separation” of [AB] from the Veza Sur Brand, 

[AB] fully controls the business including but not limited to the hiring process, 

marketing direction, sales goals incentives, wholesaler programs, and other aspects 

of the business. 

33. To further this false narrative and “separation” of [AB] from the brand, 

Defendants crafted a story highlighting certain individuals solely for marketing 

purposes. 

. . . .

64. Additionally, immediately after the Veza Sur brewery was opened, the 

beer sold by the brewery, and represented to be “Veza Sur” beer was not produced 

in Miami, or even in Florida, but by a different [AB] subsidiary in a different state. 

ECF No. [83-1] ¶¶ 27-33, 64. 

Plaintiffs also seek to clarify certain allegations regarding their intent to return to Veza Sur 

in the future if Defendants end their deceptive practices. Id. ¶¶ 72, 75.

Defendants oppose the Motion to Amend, arguing that there is no good cause to allow 

Plaintiffs to amend their pleading for a third time almost approximately nine months after the 

expiration of the deadline to amend in this case. Rather, Defendants contend that Plaintiffs are 

improperly attempting to circumvent a ruling on their Motion to Dismiss by seeking to amend the 

factual allegations. Even assuming that there is good cause, Defendants argue that permitting the 

Case 1:20-cv-23392-BB Document 114 Entered on FLSD Docket 08/18/2021 Page 39 of 43
Case No. 20-cv-23392-BLOOM/Louis

40

proposed amendment at this stage in the proceedings would be unduly prejudicial, and that any 

additional amendment would be futile.

Upon review, the Court finds that the Motion to Amend must be denied because Plaintiffs 

have failed to act diligently or to demonstrate good cause for the delay in seeking leave to amend 

their SAC. Moreover, even if Plaintiffs’ had diligently pursued the requested amendment and 

established good cause under Rule 16, the Court concludes that permitting amendment would be 

futile for the reasons explained throughout this Omnibus Order. 

Because Plaintiffs filed their Motion to Amend after the November 23, 2020 deadline to 

amend pleadings in the Court’s Scheduling Order, ECF No. [28], Plaintiffs “must first demonstrate 

good cause under Rule 16(b) before [the Court] will consider whether amendment is proper under 

Rule 15(a).” Sosa, 133 F.3d at 1419. Moreover, “[l]ack of diligence in pursuing a claim is sufficient 

to show lack of good cause.” Donley v. City of Morrow, 601 F. App’x 805, 811 (11th Cir. 2015). 

Stated differently, “diligence is the key to satisfying the good cause requirement.” Taylor v. 

Genesee & Wy., Inc., No. 3:13-cv-1250-J-39MCR, 2015 WL 12838173, at *2 (M.D. Fla. Jan. 6, 

2015) (quoting De Varona, 285 F.R.D. at 672-73). Further, “[t]he lack of diligence that precludes 

a finding of good cause is not limited to a plaintiff who has full knowledge of the information with 

which it seeks to amend its complaint before the deadline passes,” but also “include[s] a plaintiff’s 

failure to seek the information it needs to determine whether an amendment is in order.” S. Grouts 

& Mortars, Inc., 575 F.3d at 1241. “The burden of establishing good cause [and] diligence rests 

squarely on the party seeking relief from the scheduling order.” Northstar Marine, Inc. v. Huffman, 

No. 13-0037-WS-C, 2014 WL 3720537, at *3 (S.D. Ala. July 28, 2014); see also TIC Park Ctr., 

9 LLC v. Cabot, No. 16-24569-CIV, 2018 WL 4828435, at *4 (S.D. Fla. Aug. 28, 2018). 

Case 1:20-cv-23392-BB Document 114 Entered on FLSD Docket 08/18/2021 Page 40 of 43
Case No. 20-cv-23392-BLOOM/Louis

41

Plaintiffs have filed to meet the good cause standard because they cannot show that the 

deadline to amend “could not be met despite the diligence of the party seeking the extension,” or 

that they could not have sought an extension of the amendment deadline prior to its expiration. 

Sosa, 133 F.3d at 1419. As noted, Plaintiffs request to amend is prompted by evidence produced 

during discovery that informed Plaintiffs of additional facts that were relevant to their claims. 

Although Plaintiffs do not include the date on which they received the relevant discovery, they 

nonetheless argue that their requested relief is supported by good cause because they diligently 

pursued discovery and the additional facts in the TAC were not previously known to them. Despite 

Plaintiffs’ representation that they diligently pursued discovery in this case, Magistrate Judge 

Louis’s Discovery Order dated March 11, 2021, ECF No. [70], tells a slightly different story 

regarding diligence. Indeed, in her Discovery Order, Judge Louis refused to entertain Plaintiffs’ 

objections to discovery produced by Defendants on October 23, 2020. In doing so, Judge Louis 

noted that Plaintiffs failed to attempt to confer about their objections to the October 23, 2020 

discovery for two months. Then, three months later, Plaintiffs sought to raise those issues at a 

hearing before Judge Louis, but failed to provide any compelling reason for the delay. As such, 

Judge Louis concluded that Plaintiffs’ challenges to Defendants’ discovery was untimely and 

unsupported by good cause. 

Even assuming that the record supported Plaintiffs’ position that it diligently engaged in 

discovery in this case, the Court still fails to see how Plaintiffs exercised diligence in seeking to 

amend their pleading. Notably, Plaintiffs have not provided any explanation as to why their request 

was not timely filed, as is their burden to do. See Huffman, 2014 WL 3720537, at *3. In the absence 

of any compelling showing that Plaintiffs were diligent in pursuing this amendment, Rule 16’s 

good cause inquiry ends and precludes allowing the untimely amendment. Sosa, 133 F.3d at 1418. 

Case 1:20-cv-23392-BB Document 114 Entered on FLSD Docket 08/18/2021 Page 41 of 43
Case No. 20-cv-23392-BLOOM/Louis

42

As Plaintiffs have failed to demonstrate good cause and due diligence in seeking the untimely 

amendment, the Court concludes that the Motion to Amend must be denied.9

IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED as follows: 

1. Defendants’ Motion to Dismiss Second Amended Complaint, ECF No. [65], is 

GRANTED.

2. Plaintiffs’ Motion to Defer Ruling on Motion to Dismiss, ECF No. [80], is 

DENIED AS MOOT.

3. Plaintiffs’ Motion for Leave to Amend Complaint, ECF No. [83], is DENIED.

4. Counts I, II, III, IV, VII, and IX of the Second Amended Class Action Complaint 

for Injunctive and Other Relief, ECF No. [58], are DISMISSED WITH 

PREJUDICE, and Count VI is DISMISSED WITHOUT PREJUDICE.

5. Pursuant to Federal Rule of Civil Procedure 58, the Court will separately enter Final 

Judgment.

6. To the extent not otherwise disposed of, any pending motions are DENIED AS 

MOOT and all deadlines are TERMINATED.

7. The Clerk of Court is directed to CLOSE the above-styled case.

DONE AND ORDERED in Chambers at Miami, Florida, on August 18, 2021.

_________________________________

BETH BLOOM

UNITED STATES DISTRICT JUDGE

Copies to: 

9 Furthermore, as noted above, the Motion to Amend would likely still have been denied, had Plaintiffs 

established good cause, because permitting amendment would be futile where the TAC would suffer from 

the same deficiencies as the SAC (and the FAC), which are discussed throughout this Omnibus Order. 

Case 1:20-cv-23392-BB Document 114 Entered on FLSD Docket 08/18/2021 Page 42 of 43
Case No. 20-cv-23392-BLOOM/Louis

43

Counsel of Record

Case 1:20-cv-23392-BB Document 114 Entered on FLSD Docket 08/18/2021 Page 43 of 43