Eleventh Circuit Holds Rule 9(b) Applies to FDUTPA
Fort Lauderdale, Fla. – August 1, 2025 – In a decision issued today in Pop v. LuliFama.com LLC, No. 24-11048 (11th Cir. August 1, 2025), the Eleventh Circuit resolved a longstanding dispute within its district courts: whether a claim brought under the Florida Unfair and Deceptive Trade Practices Act (“FDUTPA”) sounding in fraud must satisfy the pleading requirements of Federal Rule of Civil Procedure 9(b). The Eleventh Circuit held that Rule 9(b) applies and also affirmed the dismissal of the initial complaint with prejudice because the plaintiff had not properly requested leave to file an amended complaint. Greenspoon Marder partners Jeffrey Backman and Roy Taub successfully represented Ms. Epstein in this landmark case, which will make it more difficult for lawsuits based in fraud, but carefully pleaded to avoid asserting an actual claim for fraud, to get around the more stringent requirements that apply to fraud claims.
In Pop v. LuliFama.com, the plaintiff sued a women’s swimwear company, its chief executive, and a number of well-known social media influencers/models, alleging they all “devised a scheme in which the influencers tag or recommend Luli Fama products, pretending they are disinterested and unaffiliated consumers,” which Mr. Pop claimed “misrepresented the material relationship [the social media influencers] have with [Luli Fama] by promoting Luli Fama products without disclosing the fact that they were paid to do it.”
Mr. Pop alleged that because Luli Fama’s products “were worn by his favorite influencers” and there was not, in his view, sufficient disclosure of any paid endorsement, he purchased a Luli Fama product and ending up being unsatisfied. At no point in the complaint did Mr. Pop identify any social media posts he allegedly saw or even by which influencer they may have been posted, how they were supposedly deficient, when they were posted, when he saw them, what product he purchased, how the posts caused him to make the purchase, or what specifically about the product he purchased made him dissatisfied.
The district court dismissed the complaint, finding it failed to satisfy either Rule 9(b) or the more lenient requirements of Rule 8(a). On appeal, the Eleventh Circuit focused on Pop’s arguments that Rule 9(b) should not have been applied to his FDUTPA claim (Plaintiff did not appeal the dismissal of his other claims). After noting that “[w]hether and when Rule 9(b)’s particularly requirement applies to FDUTPA claims is an issue of first impression in this Circuit,” the Eleventh Circuit ruled that it does “when those claims sound in fraud.”
Whether the plaintiff styles his or her claim as one for fraud is not dispositive, and instead the court must review the allegations underlying the claim to determine if it “sounds in fraud,” and this decision makes clear that a claim brought under FDUTPA is no exception. The Eleventh Circuit also provided guidance as to when a claim “sounds in fraud,” and while acknowledging more precision may be required in the future, it ruled that “[i]f a plaintiff’s allegations closely track the elements of common law fraud, then the plaintiff’s claim sounds in fraud for purposes of Rule 9(b).”
The Eleventh Circuit proceeded to find that the Complaint was properly dismissed for failing to comply with Rule 9(b). It also ruled that dismissal with prejudice, without leave to amend, was also proper because Mr. Pop did not properly request leave to amend his complaint, notably rejecting his cursory request “imbedded within an opposition memorandum” as having “no legal effect,” especially given he “did not allege enough facts” to suggest he should have been given a second chance. This aspect of the ruling is also likely to be frequently relied upon.
Greenspoon Marder is proud to have played a role in this significant legal development.