James I. Cohn

In Zarrella v. Pacific Life Insurance, plaintiffs brought a class action against the insurer alleging that it misrepresented the suitability and tax benefits of life insurance policies sold for use in employer-sponsored 412(i) retirement plans, which the IRS later classified as abusive tax shelters, resulting in audits, lost deductions, and penalties for plaintiffs. The second amended complaint asserted claims including breach of contract, multiple fraud-based counts, negligence, violation of California’s Unfair Competition Law, and an alternative ERISA claim. On Pacific Life’s motion to dismiss under Rules 12(b)(6) and 9(b), the court applied the plausibility standard from Twombly and Iqbal along with heightened pleading for fraud claims and granted the motion in part by dismissing the fraud-based claims for failure to plead justifiable reliance while denying dismissal in part as to non-fraud UCL claims based on false advertising predicates and certain other counts.

business & regulatoryproceduretaxestorts & liability

This case involved a motion for sanctions after the defendant's insurance representative failed to attend a court-ordered mediation in a civil lawsuit against AvMed, Inc. The court had previously directed that parties or their representatives with full settlement authority, including an insurance adjuster if applicable, must participate in mediation pursuant to a standing order and Local Rule 16.2(e). Plaintiff sought various sanctions under Federal Rule of Civil Procedure 16(f), including denial of the defendant's summary judgment motion and payment of mediation and attorney fees. The court granted monetary sanctions of $1,000 against defendants to cover mediation costs and preparation time but denied the request to strike the summary judgment motion, finding that while noncompliance warranted fees, more severe penalties were not justified. The parties were ordered to complete mediation by a new deadline.

procedure

The case involved a breach of contract claim brought by Marseilles Capital LLC against Gerova Financial Group, Ltd. after the parties entered a share repurchase agreement requiring Gerova to pay $900,000 in twelve monthly installments in exchange for the return of shares. Marseilles alleged that Gerova paid only the first seven installments totaling $525,000 and sought summary judgment for the remaining $375,000. The court granted the motion for final summary judgment, finding no genuine dispute of material fact on any element of the claim under Florida law. The core reasoning was that undisputed evidence established the existence of a valid contract, Gerova's failure to pay after Marseilles delivered the required stock power, and resulting damages of $375,000.

business & regulatoryprocedure

In Jovine v. Abbott Laboratories, Inc., the plaintiff brought a class action in Florida state court against the manufacturer of Similac infant formula after a 2010 recall of millions of cans due to possible beetle contamination discovered during quality review, alleging his infant became ill and asserting eight claims including negligence, misrepresentation, breach of express and implied warranties, breach of contract, unjust enrichment, and violation of the Florida Deceptive and Unfair Trade Practices Act. The case was removed to federal court. The district court granted the defendant's motion to dismiss the amended complaint with leave to amend, primarily because it constituted an improper shotgun pleading that incorporated all general allegations by reference into each count without adequately linking facts to specific causes of action, and secondarily because claims such as breach of warranty lacked privity of contract while fraud-based claims failed to satisfy the heightened pleading requirements of Federal Rule of Civil Procedure 9(b).

proceduretorts & liabilitybusiness & regulatory

The case involved plaintiffs who purchased life insurance policies from Pacific Life to fund a 412(i) retirement plan, which was later audited and disallowed by the IRS as an abusive tax shelter. Plaintiffs sued for breach of contract, fraud, negligence, and unfair business practices, alleging the policies were marketed with features that violated IRS rules. The court granted the motion to dismiss, reasoning that the policy documents contained clear disclaimers against relying on Pacific Life for tax or legal advice, making any reliance unreasonable. The court also noted that the negligence claim would be barred by the economic loss rule if tied to the contract claim.

business & regulatorytaxesproceduretorts & liability

In Moss v. Walgreen Co., plaintiff Howard Moss filed a putative class action alleging that Walgreen Co. made unsubstantiated and misleading claims on its Full Action mouth rinse labeling, such as fighting plaque above the gum line, in violation of the Florida Deceptive and Unfair Trade Practices Act (FDUTPA) and as a breach of express warranty, causing consumers to pay a price premium. Walgreen moved to dismiss under Rules 12(b)(1) and 12(b)(6), arguing that the claims were preempted by the federal Food, Drug, and Cosmetic Act (FDCA) and that the complaint failed to allege sufficient facts, including reliance under FDUTPA. The court denied the motion, holding that the FDCA does not preempt the state-law claims because they do not rely solely on FDCA violations, that the pleadings met plausibility standards under Twombly and Iqbal, and that FDUTPA damages can arise from a price premium even without individual consumer reliance on the deceptive statements. The decision allowed the case to proceed on both counts.

business & regulatoryprocedure

This case originated as a foreclosure action by the City of Fort Lauderdale against property owner Hezzekiah Scott in state court, which expanded when Scott and other owners filed counterclaims alleging that the City and its officials targeted Black property owners in the Northwest area with unconstitutional code enforcement, fines, and liens to acquire their properties, while misusing federal HUD funds meant for low-income housing. The counterclaims asserted violations of the Fifth and Fourteenth Amendments via Section 1983 (substantive due process, procedural due process, and equal protection), the Fair Housing Act, Florida statutes, common-law torts including fraud and nuisance, and a prior settlement agreement. After removal to federal court, the district court had already dismissed claims against the federal HUD defendants for lack of standing and subject-matter jurisdiction. The court granted the City's motion to dismiss, ruling that the counterclaims failed to meet pleading standards under Twombly and Iqbal due to insufficient factual allegations, that certain tort claims were barred, and that some claims were subject to res judicata or other procedural defects; it dismissed two state tort claims with prejudice and the rest without, granting leave to amend while denying class certification without prejudice and resolving related motions on stays and discovery.

civil rightspropertyprocedurefederal power

In this case, plaintiff Carey Chen, a marine life artist, sued his former employer Cayman Arts, Inc. and its owner Scott Steele over an employment arrangement that began in 2004. Chen alleged breach of contract, violations of the Lanham Act for false designation of origin, misappropriation of name and likeness, unfair competition, failure to pay overtime and wages, and other claims, based on unfulfilled promises to promote his work, provide a suitable studio, and other representations, as well as the company's continued use of his image and website after his 2009 resignation. The court denied the defendants' motion to dismiss under Rule 12(b)(6), finding that the amended complaint contained sufficient factual allegations to state plausible claims under the Twombly and Iqbal standards. The court also denied the motion for sanctions, determining that Chen's delays in responding to orders were not fraudulent and warranted leniency given his pro se status and circumstances with notice. Defendants were ordered to file an answer by December 6, 2010.

labor & employmentbusiness & regulatoryprocedure

This case involves a class action lawsuit by Larry Zarrella and Zarrella Construction, Inc. against Pacific Life Insurance Company over life insurance policies purchased in 2003 for use in a 412(i) retirement plan, which the IRS later audited and determined failed to qualify under tax code requirements due to features identified as abusive tax shelters. Plaintiffs asserted claims including breach of contract, multiple fraud counts, negligent misrepresentation, negligence, unjust enrichment, and violations of Florida and California unfair trade practices statutes, alleging Pacific Life knew or should have known the policies carried substantial tax risks. The court granted in part and denied in part Pacific Life's motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). It applied the economic loss rule to bar the standalone negligence claim to the extent it overlapped with the breach of contract allegations but allowed related tort claims like negligent misrepresentation to proceed as independent causes of action.

business & regulatorytaxesproceduretorts & liability

The case involves a real estate brokerage firm suing a property owner for allegedly structuring a sale of waterfront property through an LLC to avoid paying a 6% commission owed under a lease agreement's purchase option clause naming the firm as the broker. The plaintiff asserted five counts including breach of third-party beneficiary contract, unjust enrichment, conspiracy, violation of Florida's Deceptive and Unfair Trade Practices Act, and breach of the implied covenant of good faith and fair dealing. The court granted the motion to dismiss in part, dismissing the contract and good faith claims without prejudice for failure to allege breach of an express contract term, but denied dismissal of the remaining counts, finding the complaint sufficiently alleged facts supporting those claims under applicable standards.

business & regulatorypropertyprocedure

The case involved a plaintiff who received repeated calls from defendant Santander Consumer USA, Inc. attempting to collect a debt owed by a third party; after the plaintiff informed the defendant that the calls were to the wrong person, the calls continued. The plaintiff asserted claims under the Fair Debt Collection Practices Act (FDCPA), the Telephone Consumer Protection Act, and the Florida Consumer Collection Practices Act, and the defendant moved to dismiss only the FDCPA claim. The court denied the motion in part, holding that the complaint adequately alleged that the defendant qualified as a debt collector under the FDCPA, but granted dismissal of the specific claim under 15 U.S.C. § 1692c(b) on the ground that the plaintiff was not a “consumer” obligated on the debt and therefore lacked standing to assert that provision.

business & regulatoryprocedure

In Walker v. Hallmark Bank & Trust, Ltd., the plaintiff claimed he was a victim of a Ponzi scheme centered on OLINT, alleging that Hallmark Bank acted as a conduit for investor funds under a Private Club Member Agreement and asserting Florida-law claims for civil RICO violations, fraudulent conveyance, conspiracy, misrepresentation, breach of contract, unjust enrichment, and accounting. Hallmark moved to dismiss under Rule 12(b)(3), citing a forum-selection clause in the Agreement that designated the Supreme Court of the Turks and Caicos Islands as the exclusive forum. The court granted the motion, holding the clause mandatory and presumptively valid, with no showing that it resulted from fraud or would deprive the plaintiff of a remedy, and dismissed the claims against Hallmark without prejudice to refiling in the designated forum. Claims against a separate defendant were dismissed with prejudice on immunity and pleading grounds.

procedurebusiness & regulatory

The case involved a plaintiff who claimed to be a victim of a Ponzi scheme run through OLINT, a company based in the Turks and Caicos Islands, and who sued multiple defendants including Hallmark Bank & Trust and MasterCard International under Florida law for civil RICO violations, fraudulent conveyance, civil conspiracy, fraudulent misrepresentation, breach of contract, unjust enrichment, and accounting. The complaint alleged that MasterCard was connected to the scheme solely because Hallmark issued MasterCard-branded payment cards and displayed the MasterCard logo, which the plaintiff said lent legitimacy to the investment and induced him to participate. MasterCard moved to dismiss all claims against it, arguing that the complaint contained no factual allegations linking MasterCard or its cards to the alleged scheme. The court granted the motion and dismissed the claims with prejudice, holding that the allegations failed to state plausible claims under any of the asserted causes of action because they did not satisfy the required elements, such as an enterprise for RICO or a direct connection for fraud or conspiracy, and that amendment would be futile.

criminal lawbusiness & regulatoryproceduretorts & liability

This case involves a negligence claim arising from a 2007 motorcycle accident in which Florida citizen Luigi La Rocca sued Missouri citizen Thomas Stahlheber for injuries sustained when Stahlheber's vehicle struck him. La Rocca filed the suit in Florida state court without specifying a damages amount, and Stahlheber removed it to federal court under diversity jurisdiction. La Rocca moved to remand, arguing that the amount in controversy did not exceed the $75,000 threshold. The court denied the motion, holding that the parties' citizenship was diverse and that the amount in controversy was satisfied by a preponderance of the evidence from a pre-suit demand, which included medical reports projecting at least $2,000 per year in future medical costs over the plaintiff's approximately 38-year life expectancy, exceeding $75,000 even without quantifying other damages.

proceduretorts & liability

The case involved competitors Star-Brite Distributing and Kop-Coat in the marine ethanol fuel additive market, with Star-Brite seeking to enjoin Kop-Coat from running comparison advertisements claiming that lab tests showed its VEGA product outperformed Star-Brite's StarTron on measures like fuel stability. The court granted the motion for a preliminary injunction after a hearing, finding that the advertisements were likely false or misleading under the Lanham Act and related state laws. The core reasoning was that the ASTM D525 test protocol used by Kop-Coat was not designed or validated for E10 ethanol fuels, the relevant product category, and produced unreliable comparative results that overstated StarTron's deficiencies while ignoring contrary test data. The court also noted consumer confusion and potential harm to Star-Brite's market position as supporting factors for injunctive relief.

business & regulatory

This case involves a Florida consumer's lawsuit against Wm. Wrigley Jr. Company alleging that its advertising for Eclipse gum, which claimed the product was scientifically proven to kill germs causing bad breath due to Magnolia Bark Extract, was false and deceptive. The plaintiff brought claims under Florida's Deceptive and Unfair Trade Practices Act (FDUTPA) and for breach of express warranty on behalf of a putative class, asserting that she and others paid a premium price for the gum based on the misleading statements. Wrigley moved to dismiss, arguing that the FDUTPA claim lacked sufficient allegations of actual damages or aggrievement and that the warranty claim failed due to lack of privity and cognizable injury. The court denied the motion, holding that the complaint adequately alleged the plaintiff was aggrieved under FDUTPA by purchasing the product in reliance on the campaign and that the express warranty claim was sufficiently pleaded because the statements on packaging created a warranty that the plaintiff relied upon when buying the gum.

business & regulatoryprocedure

This case concerned a marine insurance coverage dispute after a yacht owned by Lago Canyon partially sank due to corrosion of a hose barb, leading St. Paul to seek a declaratory judgment that the policy excluded the loss while Lago counterclaimed for breach. Following an Eleventh Circuit decision vacating the district court's initial ruling in favor of St. Paul on the coverage issues and remanding for further proceedings, the court granted Lago's motion to vacate the prior award of costs to St. Paul as prevailing party under Rule 60(b)(5) because it was based on the now-reversed judgment. The court also granted Lago's motion for prejudgment interest on the limited emergency services coverage that had been awarded but denied its motion to amend its affirmative defense alleging a manufacturer's defect, determining that amendment was not warranted under the circumstances. The core reasoning focused on the direct impact of the appellate vacation on the costs award and the application of federal procedural rules governing relief from judgment and pleading amendments.

procedurebusiness & regulatory

This case involves a dispute over ownership and use of trademarks "SUNCREST" and "HAIR BY MAIL" between First Fashion USA, Inc. and its former principals, including Edward S. Smith and his company BHRM. First Fashion sued for trademark infringement, dilution, unfair competition, and related claims under federal and Florida law, seeking to prevent the defendants from using the marks after a falling out. The court granted a preliminary injunction, finding that Smith had contributed the marks and related assets to First Fashion without any licensing agreement or reservation of rights, making First Fashion the owner, and that the defendants' continued use constituted infringement. The injunction prohibits the defendants from using the marks, associated domain names, phone numbers, and emails, requires transfer of those assets back to First Fashion, and mandates a corrective letter to customers.

business & regulatoryproperty

The case Sanz v. Fernandez involved a tenant suing a property management company and attorneys for alleged violations of the Fair Debt Collection Practices Act (FDCPA) and Florida Consumer Collection Practices Act (FCCPA) arising from eviction notices and debt collection correspondences that failed to disclose debt collector status or dispute rights, as well as an eviction lawsuit filed in state court. Defendants moved to dismiss on grounds that they were not debt collectors engaged in debt collection activity and alternatively moved to strike certain complaint paragraphs. The court denied the motion to dismiss, holding that the plaintiff adequately alleged facts establishing debt collection activity—including the filing of lawsuits under Heintz v. Jenkins—and that defendants qualified as debt collectors under the FDCPA and FCCPA, with claims for declaratory and injunctive relief also properly stated. The court further denied the motion to strike, finding the paragraphs neither redundant, immaterial, impertinent, nor scandalous.

business & regulatoryprocedureproperty

This case arose from a 2006 contract between the Santidrian plaintiffs and Landmark Custom Ranches for purchase of a to-be-built home, under which plaintiffs paid a $420,000 deposit but later could not obtain financing, demanded rescission, and sued for alleged Interstate Land Sales Act (ILSA) violations plus related claims against the corporate seller, its owner, and a sales agent. After discovery and multiple motions for judgment on the pleadings and summary judgment, the court found the sale not exempt from ILSA under the two-year completion provision because the contract lacked mutuality of remedies, dismissed the claims against individual defendant Caprio, struck class allegations, and set the remaining ILSA claims against Landmark and Bell for trial. Core reasoning focused on statutory interpretation of ILSA exemptions, the effect of contract terms allowing seller discretion, and undisputed facts that construction was substantially completed within two years but financing contingencies and promotional plan issues remained disputed.

business & regulatorypropertyprocedure