Antitrust Law Daily Wrap Up, ADVERTISING—11th Cir.: Swimsuit influencer endorsement claims dismissed, (Aug 1, 2025)

By Jody Coultas, J.D.

Heightened pleading standard of Rule 9(b) applies to Florida deceptive practices claims that sound in fraud.

A swimsuit purchaser failed to plead the fundamental elements necessary to proceed with Florida Deceptive and Unfair Trade Practices Act (FDUTPA) claims in connection with allegedly deceptive online “influencer” swimsuit advertising, held the Eleventh Circuit Court of Appeals. For the first time, the Eleventh Circuit ruled that the Federal Rule of Civil Procedure 9(b) applies to fraud claims under the FDUTPA. Because the claims at issue sounded in fraud, the consumer was required, but failed, to meet a heightened pleading standard. Among the many pleading deficiencies, the court found the consumer did not allege details about any of the influencer posts viewed. The court also reasoned that the consumer did not have actual damages, only subjective dissatisfaction with the goods (Pop v. Lulifama.Com LLC, No. 24-11048 (11th Cir. Aug. 1, 2025)).

Luli Fama is a swimwear designer, manufacturer, and reseller that generates most of its sales through social media advertising, including the use of influencers. The consumer, an Instagram user, purchased Luli Fama products after seeing influencers he followed wearing the products, which they tagged. After receiving the products, the consumer believed the swimwear to be of a lower value than the price paid and Luli Fama refused to accept a return. The consumer argued that both Luli Fama and the influencers devised a scheme in which the influencers tag or recommend Luli Fama products, pretending they are disinterested and unaffiliated consumers in violation of the Florida Deceptive and Unfair Trade Practices Act (FDUTPA).

The federal district court in Tampa, Florida dismissed the complaint with prejudice, holding that the consumer failed to meet the heightened pleading standard of Federal Rule of Civil Procedure 9(b). Specifically, the consumer failed to allege which posts led him to purchase Luli Fama products, what products he purchased, or why the products were of lower quality. The court noted that even if Rule 9(b) did not apply, the claim would still fail for failure to show a deceptive or unfair trade practice, causation, and actual damages.

Rule 9(b). The appellate court held that Rule 9(b) applied to FDUTPA claims and affirmed dismissal of the claims for failure to meet the heightened pleading standard. Whether and when Rule 9(b)’s particularity requirement applies to FDUTPA claims was an issue of first impression in the Eleventh Circuit. So long as a claim “sound[s] in fraud” based on the allegations underlying the claim, Rule 9(b)’s particularity requirement applies. Thus, the court held FDUTPA claims that sound in fraud are subject to Rule 9(b). Because the elements of a FDUTPA claim do not perfectly overlap with the elements of a fraud claim does not prevent Rule 9(b)’s particularity requirement from applying to a FDUTPA claim that sounds in fraud based on the factual allegations underlying the claim.

The consumer’s claims sounded in fraud, according to the appellate court. Fraud can be defined as a false representation of a material fact made by one who knew that it was false, made to one who did not know that it was false, with intent to deceive such person and to influence his action. The consumer argued that he did not raise any claim for fraud and limited the claim to a statutory violation. However, the factual allegations underlying the claim—and not the claim’s styling—determine whether Rule 9(b) applies. The factual allegations concerned misrepresentations and omissions made by Lulifama and the influencers that resulted in an alleged loss of money by the consumer. This was sufficient to ground the claims in fraud.

However, the consumer failed to meet the heightened pleading standard. Because the complaint did not specify which defendants made which posts, what the posts said, when the posts were made, when the consumer saw the posts, or how the posts caused anyone to purchase which products, the claim failed to comply with Rule 9(b).

Dismissal with prejudice. The district court did not err in dismissing the suit with prejudice and the consumer failed to properly request leave to amend, according to the appellate court. Because the request for leave to amend was “imbedded within an opposition memorandum,” it had “no legal effect.” The consumer argued that the district court should have given him at least one chance to amend his complaint. However, unlike in other cases where leave was granted to amend, the consumer in this case did not simply fail to link facts to the cause of action. The consumer failed to allege sufficient facts, and it was clear the consumer had failed to state a claim.

The Case is No. 24-11048.

Judge: Branch, E.

Attorneys: Bogdan Enica (Keith Gibson Law, PC) for Alin Pop. Brigid Finerty Cech Samole (Greenberg Traurig, PA) for LuliFama.com LLC.

Companies: LuliFama.com LLC

Cases: Advertising StateUnfairTradePractices AlabamaNews FloridaNews GeorgiaNews