1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 1:20-cv-23391-COOKE/GOODMAN

ADT LLC, et al.,

Plaintiffs,

v.

VIVINT SMART HOME, INC., et al.,

Defendants.

___________________________ _/

DEFENDANTS’ REPLY MEMORANDUM IN SUPPORT OF MOTION TO

DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT

Defendants Vivint Smart Home, Inc. f/k/a Mosaic Acquisition Corp. and Legacy 

Vivint Smart Home, Inc. f/k/a Vivint Smart Home, Inc. (together, “Vivint”), through the 

undersigned counsel, hereby respectfully submit this Reply Memorandum in Support of its 

Motion to Dismiss Counts III and IV of the First Amended Complaint (“FAC”) filed by 

Plaintiffs, ADT LLC and The ADT Security Corporation (together, “ADT”).

INTRODUCTION

ADT’s Response fails to salvage Count III and Count IV of its FAC. As set forth 

below, it misapplies the Rule 9(g) pleading standard for special damages as to Count III, and 

it fails to overcome its own allegations that present a facially deficient claim for Count IV,

that can and should be disposed of on a Rule 12(b)(6) pleading standard.

ARGUMENT

I. COUNT III SHOULD BE DISMISSED.

First and foremost, ADT acknowledges that it must plead special damages as an 

essential element of its trade slander claim (Resp. at p. 2), and that its claim is subject to the 

pleading standard for special damages in Rule 9(g). (Resp. at p. 3.) ADT insists, however, 

that Rule 9(g) has no independent purpose and requires only that ADT satisfy the generic 

“notice” pleading standard under Rule 8(a). ADT is wrong, as explained below. 

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ADT first mischaracterizes the Motion as advocating to apply Rule 9(b) to special 

damages. (Resp. at p. 3.) Nowhere in the Motion is 9(b) uttered, though, to be clear, it is 

correct that Rule 9(g) imposes a similar “particularity” or “specificity” heightened pleading 

standard for special damages. Vivint cited ample authorities explaining the level of detail a 

plaintiff must provide—including identification of “realized loss” with respect to specific 

customers and a pecuniary computation—none of which ADT provides in the FAC. (See

Motion at pp. 4-7.) ADT does not acknowledge any of these authorities. It makes a general, 

unsupported assertion that “the cases cited by Vivint each stand for nothing more than the 

unremarkable proposition that special damages are subject to Rule 8’s notice-pleading 

standard.” (Resp. at p. 4) (no supporting citations or explanation.) This is simply not true. 

These cases reinforce that special damages require a plaintiff to show a “realized loss” and 

plead it commensurately under the Rule 9(g) specificity standard. (See, e.g., id.) 

The one authority the Response purports to distinguish does not help ADT’s position. 

Vivint cited Advisors Excel, L.L.C. v. Scranton1 to support its preceding statement that, “[t]o 

succeed on [a trade slander] claim, a plaintiff must plead special damages.” (Motion at p. 4.) 

ADT fusses over the fact that Advisors Excel did not discuss the Rule 9(g) 

particularity/specificity standard. ADT overlooks the authorities couching this citation, 

which confirm the heightened pleading standard. (Motion at p. 4, citing Rule 9(g) specificity 

standard and Landsman, supra2; see also Motion at pp. 4-16, citing additional cases applying a 

heightened pleading standard.)3 It is telling that ADT sidesteps all of these authorities. ADT’s 

silence does not diminish their application to its pleading obligations.

 1 No. 14-60558-CIV, 2014 WL 12543802, at *8 (S.D. Fla. Sept. 15, 2014).

2 To expand on this citation in the Motion, the Landsman court precluded a plaintiff from 

seeking special damages in the form of “past wage loss, future wage loss, future wage earning 

capacity, future medical expenses and loss of future household services because they were not 

properly plead in accordance with Rule 9(g)[].” Id. at *3. The Landsman opinion reiterated the 

“heightened pleading requirement of Rule 9(g).” Id. (Emphasis added).

3 While the Motion focused on Florida courts, the Rule 9(g) standard is uniformly established 

in federal court. See Smith v. Clinton, 886 F.3d 122, 128 (D.C. Cir. 2018) (plaintiff did not plead 

special damages under Rule 9(g) where the complaint “merely contains a boilerplate 

recitation, unaccompanied by any factual detail, that ‘[a]s a direct and proximate result of 

Defendant Clinton's statements, [Smith and Woods] have suffered pecuniary damage, as well 

as injury to reputation, impairment to standing in their community, personal humiliation, 

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ADT’s confusion on the applicable pleading standard appears to stem from its 

misapplication of Leavitt v. Cole, which both sides cite in their briefs.4 ADT claims that Leavitt

only requires a plaintiff to allege the “types” of special damages it seeks. (Resp. at p. 3.) The

Leavitt court addressed at length the parameters of notice required by Rule 9(g) and ultimately 

concluded, in that case, the plaintiff need only provide notice under Rule 8. ADT’s reliance 

on Leavitt is misplaced for several reasons: 

First, Leavitt has since been rejected by the same District to the extent it purported to 

equate Rule 9(g) with Rule 8. In Nat'l Numismatic Certification, LLC v. eBay, Inc.

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—an authority 

cited by Vivint to explain the Rule 9(g) standard yet ignored in ADT’s Response—the court 

dismissed a trade libel claim6 for failure to plead special damages, even though the other libel 

elements had been sufficiently alleged. Id. at *19. It unequivocally confirmed that in trade 

libel cases, “[c]oncerning the issue of pleading, [Fed. R. Civ. P. 9] states that ‘[i]f an item of 

special damage is claimed, it must be specifically stated.’” Id. The court described the 

“interaction” between “Rule 9(b) and the requirement of proving special damages in trade 

libel cases” as stated by federal courts:

[E]ven under the liberal federal rules of pleading, it is necessary for the plaintiff 

to allege either the loss of particular customers by name, or a general diminution 

in its business, and extrinsic facts showing that such special damages were the 

 

pain and suffering, and emotional distress’”); Browning v. Clinton, 292 F.3d 235, 245 (D.C. 

Cir. 2002) (to plead special damages in suit for disparagement of property, plaintiff had to 

“identify[] either the particular customers whose business ha[d] been lost or facts showing an 

established business and amount of sales before and after disparaging publication, along with 

evidence of causation”) (emphasis added); Brown & Williamson Tobacco Corp. v. Jacobson, 713 

F.2d 262, 270 (7th Cir. 1983) (special damage not adequately pled where complaint only 

generally alleged decrease to plaintiff’s sales and danger to value of plaintiff’s advertising, 

which was not sufficient to plead actual, realized pecuniary injury and therefore not 

specifically alleged).

4 Vivint cited Leavitt to explain the difference between the requirement to plead special 

damages for slander per quod and injurious falsehood allegations, as opposed to slander per se. 

(Motion at p. 7.) ADT does not dispute that it must plead special damages, so Vivint will not 

repeat that argument.

5 No. 6:08-cv-42-ORL-19JK, 2008 WL 2704404, at *20 (M.D. Fla. July 8, 2008).

6 The claim was for conspiracy to commit trade libel, but the court’s analysis centered on 

whether the allegations sufficiently stated the “underlying tort of trade libel.” Id. at *18.

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natural and direct result of the false publication. If the plaintiff desires to 

predicate its right to recover damages upon general loss of custom, it should 

allege facts showing an established business, the amount of sales for a 

substantial period preceding the publication, and [the] amount of sales 

subsequent to the publication, facts showing that such loss in sales were the 

natural and probable result of such publication, and facts showing the plaintiff 

could not allege the names of particular customers who withdrew or withheld 

their custom.

Id. at * 19 (quoting KBT Corp., Inc. v. Cerdian Corp., 966 F. Supp. 369 (E.D. Pa. 1997)).

(Emphasis in original) (other internal citations omitted).7

Like ADT, the plaintiff in Nat’l Numismatic sought to avoid Rule 9(g) by citing Leavitt. 

See id. at *20. The court swiftly rejected this argument because, “Florida law requires a trade 

libel plaintiff to prove special damages as part of his or her claim” (id. at *20), whereas Leavitt

had viewed Rule 9(g) as limited to “giving proper notice of certain types of damages.” Id. (All 

emphases added). Moreover, “[e]ven if Leavitt correctly describes the purpose8 behind Rule 

 7 This heightened pleading standard is appropriate at the pleading stage because special 

damages are only available if there is already a realized loss. See id. (special damages for trade 

libel require a “pecuniary loss that has been realized or liquidated, as in the case of specific 

lost sales . . . In doing so, the plaintiff must establish more than general pecuniary harm”) 

(internal citations and quotations omitted).

8 The Leavitt court admitted, “[t]o be sure, [its holding] is a fairly narrow reading of Rule 9(g) 

. . .” but appeared to disfavor applying Rule 9(g) in favor of the Rule 26 initial disclosure 

requirements. 291 F. Supp. 2d at 1344, n. 6. The Nat'l Numismatic court rejected these 

ruminations as unsupported: 

Leavitt did not actually cite to any authority discussing the purpose of Rule 9(g), 

and the commentary accompanying Rule 9 contains no discussion of 

subsection (g). However, at least one treatise has stated the following in 

reference to Rule 9(g): “In the second class of cases [including trade libel], the 

existence of special damages is an essential ingredient of the plaintiff's claim for 

relief; in other words, as a matter of substantive law recovery is impossible 

without demonstrating that the plaintiff sustained such damages. To some 

degree, therefore, Rule 9(g) demands more by way of a statement of this aspect of 

the claim than is required by Rule 8(a)(2). This special damage requirement most 

often exists in cases of defamation, disparagement of property, and several 

other so-called “disfavored causes of action.”

(quoting 5A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1310 (3d 

ed.2005)). (Emphasis added). The purpose of Rule 9(g) to plead with specificity “would 

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9(g), it is impossible to ignore that the plain language of the Rule squarely encompasses one 

of the elements of establishing a trade libel claim. Accordingly, Rule 9(g) requires Plaintiffs to 

plead special damages with specificity.” Id. (Emphasis added) (dismissing claim where plaintiffs 

pleaded harm to their reputation, inducement of others not to do business with them, and 

prejudice in the conduct of their trade). “Rule 9(g) requires a greater specificity of pleading 

than simply alleging that statements were prejudicial to one’s business and caused pecuniary 

harm. Plaintiffs do not meet this burden in the Amended Complaint.” Id. at * 20. So it is here 

where ADT has generally alleged harm to its goodwill and reputation, lost sales and profits, 

and unspecified attorneys’ fees. (FAC at ¶ 81.)

Second, the Leavitt holding is not analogous in any event. The surviving claim in Leavitt

was based on statements damaging the reputation of an individual. (Id. at 1345.) There is a 

distinction between the reputation (and natural resulting harm) to an individual as opposed to 

the reputation of an entity like ADT. “Property does not have a reputation in the sense of a 

natural person.” Leavitt, 291 F. Supp. 2d at 1343, n. 4 (such that “[g]enerally, property’s repute 

is valuable only in a transactional sense” and citing Salit requiring a plaintiff shareholder to 

plead a “realized loss” of stock as opposed to a general “diminution in stock value”). ADT is 

an entity, unlike the party in Leavitt, and must plead alleged harm in the form of a 

transactional, “realized loss.” It has not done so. ADT’s allegations are more analogous to 

the claim Leavitt dismissed. ADT alleges that Vivint made statements impersonating itself as 

“acting on behalf of ADT.” (Resp. at p. 1.) With respect to these type of “masquerading” 

allegations, Leavitt dismissed a similar claim since “rather than reflecting on [the 

counterclaimant’s] reputation, [the allegation that the counterclaim defendants masqueraded 

as representatives of [the counterclaimant]] appears to raise an incomplete claim for fraud.” 

Id. at 1346 (dismissing claim even under Rule 8(a)(2) pleading standard). Leavitt is not 

instructive for the Rule 8(a) pleading standard ADT advocates.

 

discourage baseless litigation and seems entirely consistent with trade libel’s status as a 

‘disfavored cause of action.’” Id. (quoting Wright and Miller, supra).

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Next, ADT cites authorities it contends apply a Rule 8(a) pleading standard to special 

damages. (See Resp. at pp. 3-4.) They do not. While a defamation claim is generally subject 

to Rule 8, if special damages are required as an essential element—as they are here—they are 

subject to the specificity pleading standard of Rule 9(g). Compare (ADT’s misplaced reliance 

on) Caruso v. Galencare, Inc., No. 8:14-CV-539-T-33AEP, 2014 WL 1796684, at *4 (M.D. Fla. 

May 6, 2014) (pleading standard for special damages was neither raised nor addressed by the 

Court; rather, the defendant argued that the plaintiff had not sufficiently identified the speaker 

and time frame of the alleged defamation, which allegations are subject to Rule 8 and not at 

issue in Vivint’s Motion); Suarez v. Sch. Bd. of Hillsborough Cty., No. 8:13-CV-1238-T-17MAP, 

2013 WL 5653435, at *4 (M.D. Fla. Oct. 16, 2013) (pleading standard for special damages 

was neither raised nor addressed by the Court; moreover, the court emphasized its lenient 

view of the allegations because the plaintiff was pro se, yet still dismissed his claim under Rule 

8); Thompson v. Kindred Nursing Centers E., LLC, 211 F. Supp. 2d 1345, 1356-57 (M.D. Fla. 

2002) (on a motion to strike allegations from an existing claim, the alleged special damages 

were not an essential element of a trade slander claim—no slander claim was even raised; 

rather, they were for pre-judgment interest on medical expenses). Thompson does not discuss

Rule 9(g) in any event. See id.

9

Finally, but critical as it pertains to ADT, the Response is conspicuously silent when 

confronted with Judge Middlebrooks’ summary dismissal of its identical trade slander claim

against Vivint in 2017. See ADT LLC v. Vivint, Inc., No. 17-CV-80432, 2017 WL 5640725, at 

*7 (S.D. Fla. Aug. 3, 2017) (noting, “ADT does not argue that its general allegations as to [its 

timely alleged incidents] satisfy the particularity requirement for pleading special damages” 

and dismissing claim without prejudice). (Emphasis added). The law has not changed. Again, 

 9 ADT also cites two cases that it claims contained analogous allegations and survived 

motions to dismiss. (Resp. at 2, citing ThermoLife Int'l LLC v. Vital Pharm. Inc., No. 19-CV61380, 2020 WL 409594, at *2 (S.D. Fla. Jan. 24, 2020); and Freda v. Ginn-LA Pine Island Ltd., 

LLLP, No. 608CV691ORL35GJK, 2009 WL 10670302, at *3 (M.D. Fla. Oct. 27, 2009).) 

These cases are not analogous. Thermolife relied on Leavitt with respect to the pleading 

standard. In Freda, the court did not address a trade slander claim with special damages as an 

essential element, but rather the plaintiff’s attempt to plead categories of damages, in addition 

to “general and statutory damages,” under the Interstate Land Sales Full Disclosures Act, 15 

U.S.C. §§ 1701-1720. As explained above, special damages as an essential element of trade 

slander are subject to a heightened pleading standard.

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ADT did not appeal this ruling, and it did not bother to amend its claim despite being granted 

leave to do so, suggesting it has not suffered any “realized loss” from Vivint’s alleged conduct, 

not then and not now. ADT’s attempt to revisit well-tread ground in this Court, hoping for a 

different result, should be rejected. 

II. COUNT IV SHOULD BE DISMISSED.

As a threshold matter, ADT does not dispute that it cannot seek future profits or 

revenue streams as a category of damages for its interference claim (see, e.g., Response), so at 

a minimum, the Court should grant the Motion as it pertains to precluding these alleged 

damages. (See Motion at p. 10.)

As to damages ADT alleges were caused by termination of existing ADT contracts, 

the gist of its response is that, to the extent Vivint has not challenged the sufficiency of ADT’s 

pleading as to three of the four essential elements (the fourth being actual damages), the fourth 

element should be presumed. (Resp. at p. 5.) This argument is untenable because to reach this 

conclusion, ADT must ignore the truth of its own allegation that third-party customers elected, 

on their own, not to pay off their ADT contract with money Vivint provided expressly for that 

purpose in order for the customer to avoid breaching the ADT contract. The customer’s actions 

thereby breached the contract, and thereby proximately caused ADT’s claimed damages. 

Vivint’s intent matters in this respect, which is distinct from its intent to solicit and 

secure the ADT customers’ business for itself. (The latter is a recognized privilege and nonactionable, which Vivint intends to prove in discovery should this claim survive). But as to 

the former intent, “even if the defendant is aware of the existing business relationship, the 

defendant will not be liable for tortious interference with that relationship unless there is 

evidence that the defendant intended to procure a breach of the contract.” Chicago Title Ins. Co. 

v. Alday-Donalson Title Co. of Fla., 832 So. 2d 810, 814 (Fla. 2d DCA 2002) (internal citations 

omitted) (emphasis added). Thus, even taking ADT’s allegations as true that Vivint acted 

unlawfully in soliciting the customers’ business, it must also allege that Vivint intended to 

cause that customer to breach their contract with ADT. It cannot do so because its allegations 

also suggest that Vivint sought to avoid a breach by paying off the customers’ ADT contract. 

(DE 22 at ¶ 86, FAC alleges that Vivint’s “buy-out” practices consist of a “promise that Vivint 

will ‘buy out’ the remaining term by paying to the customer an amount equal to the remaining 

obligation on their ADT contract.”)

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In this regard, Vivint relied on Farah v. Canada, 740 So. 2d 560, 561 (Fla. 5th DCA 

1999), and 45 Am.Jur.2d Interference § 10 (1999) for the rule that, “in an action for procuring 

the breach of a contract, the defendant may not be held liable where it is found that the breach 

by the party to the contract rather than the persuasion by the defendant was the proximate cause 

of the plaintiff's damage.” (Emphasis added).10 ADT seeks to distinguish Farah and Palm Beach 

Cty. Health Care Dist. v. Prof’l Med. Educ., Inc., 13 So. 3d 1090 (Fla. 4th DCA 2009) as making 

factual determinations not appropriate on a motion to dismiss. But, here, it is axiomatic that 

“[w]hile an affirmative defense generally will not support a motion to dismiss, a complaint is 

‘subject to dismissal under Rule 12(b)(6) when its allegations—on their face—show that 

an affirmative defense bars recovery on the claims.’” Olagues v. Frost, 325 F. Supp. 3d 1315, 

1318 (S.D. Fla. 2018) (quoting Larry v. Mercer, No. 15-12153-E, 2015 WL 9917185, at *1 (11th 

Cir. Nov. 17, 2015)). ADT’s allegation that Vivint allegedly does, in fact, remit funds to pay 

off the ADT contract to avoid a breach, is a basis for dismissal at the pleading stage. 

The ruling in Clean Coal Techs., Inc. v. Leidos, Inc., 377 F. Supp. 3d 303, 319 (S.D.N.Y. 

2019), reconsideration denied, No. 17 CIV. 9678 (KPF), 2019 WL 5960202 (S.D.N.Y. Nov. 13, 

2019), is illustrative and persuasive.11 In granting a motion to dismiss for failure to state a 

claim, the court faced a scenario similar to this case. The Clean Coal defendant did not 

challenge the plaintiff’s sufficient pleading of the existence of a valid contract, the defendant’s 

knowledge of said contract, the breach of said contract, or that damages resulted from the 

breach. Id. at 319. Instead, as Vivint argues here, the defendant argued that “[the plaintiff] 

fails to allege plausibly that [the defendant] either intentionally procured the breach or was 

the but-for cause of the breach.” Id. The Clean Coal court agreed, based on allegations in the 

 10 This rule is well-established and holds true, notwithstanding the Motion’s inadvertent 

inclusion of Westlake quoting these authorities.

11 The court addressed a tortious interference claim under New York law, which has the same 

elements as Florida law. See id. at 318 (“To demonstrate tortious interference with contract, 

a plaintiff must prove [i] the existence of a valid contract between the plaintiff and a third 

party; [ii] the defendant's knowledge of the contract; [iii] the defendant's intentional 

procurement of the third-party's breach of the contract without justification; [iv] actual breach 

of the contract; and [v] damages resulting therefrom.”).

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complaint that “makes clear that [the third party] made an independent decision to withhold 

the password and SD card.” Id. (the withholding being the actual “breach”). The plaintiff 

alleged that the defendant had failed to provide these items directly to plaintiff and instead 

gave them to the third party, but “[t]here is no allegation that this refusal to provide the items 

was done at [the defendant’s] instruction; that [the defendant] conceived of this plan; or that 

[the defendant] even suggested that [the third party] withhold these items.” Id. In short, “[t]he 

Court does not find that [the plaintiff] has plausibly alleged anything other than an independent 

decision by [the third party] to breach the [contract], which may have been eased by certain actions 

taken by [the defendant]. Tortious interference requires more.” Id. (Emphasis added).

The same analysis applies here. ADT may have suffered damage from a customer’s

breach. It may criticize Vivint giving funds to complete the contract to the customer rather 

than directly to ADT. But it also alleges that it was the customer(s) who failed to pay off 

contracts, and does not allege that Vivint conspired with the customers to essentially pay them 

“free” money and instruct them not to use that allocated money to pay ADT—which would 

be nonsensical. This claim requires more.

Based on the foregoing, ADT has not alleged any actionable actual damages. ADT’s 

response that its claim for the special damages category of “loss of goodwill” is not held to a 

heightened pleading standard is addressed above with respect to ADT’s unavailing position 

on Rule 9(g), particularly where it would remain as the sole basis to satisfy the essential 

element of damages. ADT has not sufficiently pleaded this element to state a claim.

CONCLUSION

Based on the foregoing, Vivint respectfully requests that the Court dismiss Counts III 

and IV of the First Amended Complaint.

Respectfully submitted,

s/Michael N. Kreitzer

Michael N. Kreitzer

Florida Bar No. 705561

kreitzerm@gtlaw.com

Jared R. Kessler 

Florida Bar No. 96020

kesslerj@gtlaw.com 

GREENBERG TRAURIG, P.A.

333 S.E. 2nd Avenue, Suite 4400

Miami, Florida 33131

Case 1:20-cv-23391-MGC Document 29 Entered on FLSD Docket 11/17/2020 Page 9 of 10
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Telephone: (305) 579-0500

Gregory W. Herbert

Florida Bar No. 0111510

herbertg@gtlaw.com

Joshua Brown

Florida Bar No. 826391

brownjr@gtlaw.com

GREENBERG TRAURIG, P.A.

450 S. Orange Avenue, Suite 650

Orlando, FL 32801

Telephone No. (407) 420-1000

Matthew A. Steward

mas@clydesnow.com

(Pro Hac Vice Motion Forthcoming)

Shannon K. Zollinger

skz@clydesnow.com

CLYDE SNOW & SESSIONS

201 S. Main Street, Suite 1300

Salt Lake City, UT 84111

Attorneys for Defendants

 

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