In a case of first impression, the Eleventh Circuit held that when a claim sounds in fraud, based on the underlying allegations, it must comply with Federal Rule 9(b)’s particularity requirement. This requirement applies to claims asserting violations of Florida’s Deceptive and Unfair Trade Practices Act (FDUTPA). Because the plaintiff failed to plead his FDUTPA claim (which sounded in fraud) with particularity, the Eleventh Circuit affirmed the district court’s dismissal with prejudice.
In Pop v. Lulifama.com LLC, No. 24-11048, 2025 WL 2177719 (11th Cir. Aug. 1, 2025), the plaintiff brought a putative class action against swimwear company, Luli Fama, and eight individual social media influencers who posted pictures of themselves wearing Luli Fama products on social media without disclosing that they were being paid to do so. He alleged that the influencers misrepresented the material relationship they had with Luli Fama by promoting its products without disclosing that Luli Fama paid them, and that Luli Fama enabled the influencers to engage in such deceptive acts, in violation of FDUTPA. He also alleged that based on the social media posts, he and the class members purchased products from Luli Fama that were of a lower value than the price paid and therefore suffered damages. The complaint sought more than $10 million in damages for the class, an injunction, declaratory judgment, and attorney’s fees.
Judge Elizabeth Branch delivered the opinion of the court, which affirmed the lower court’s dismissal with prejudice. The court held that where, based on the allegations underlying a claim (nothow the plaintiff styles the claim), a claim sounds in fraud, Rule 9(b)’s requirement that claims be pleaded with particularity applies. Thus, FDUTPA claims that sound in fraud must comply with Rule 9(b).
The Eleventh Circuit noted that it had not previously “explored in depth how to determine whether a claim ‘sounds in fraud’ such that Rule 9(b) applies to the claim.” Id. at *6. The court explained that if a plaintiff’s allegations closely track the elements of common law fraud, then the plaintiff’s claim sounds in fraud for Rule 9(b) purposes. The court concluded that here, although the plaintiff’s FDUTPA claim had different elements than fraud, his allegations closely tracked the elements of common law fraud. The plaintiff alleged that the influencers misrepresented the material relationship they had with Luli Fama and that he relied on the undisclosed paid advertising in making his purchase, which caused him damages. Thus, the court concluded Rule 9(b) applied to the plaintiff’s FDUTPA claim.
The court next determined that the complaint failed to comply with Rule 9(b) because it failed to allege “the who, what, when[,] where, and how” of the allegedly wrongful conduct. Id. at *8 (quoting Garfield v. NDC Health Corp., 466 F.3d 1255, 1262 (11th Cir. 2006)). While the complaint alleged that Luli Fama and the influencers devised a scheme in which the influencers tagged or recommended, at some point, in some posts, unspecified Luli Fama products, pretending they were disinterested and unaffiliated consumers, the complaint failed to specify which defendants made which posts, what the posts said, when the posts were made, when the plaintiff saw the posts, or how in any detail the posts caused the plaintiff or anyone else to purchase which products.
Finally, the court found that the district court did not err by dismissing the complaint with prejudice, reasoning that the represented plaintiff failed to properly request leave to amend because the plaintiff only did so on the last page of his response to the defendants’ motion to dismiss. Eleventh Circuit precedent establishes that a request for leave to amend is not properly raised where it is “simply . . . imbedded within an opposition memorandum.” Id. at *9 (quoting Newton v. Duke Energy Fla., LLC, 895 F.3d 1270, 1277 (11th Cir. 2018)). Further, because the complaint was not a so-called shotgun pleading but rather simply failed to allege sufficient facts, the Eleventh Circuit’s narrow exception requiring district courts to grant sua sponte leave to amend on non-merits dismissals of shotgun pleadings did not apply.