In Pop v. LuliFama.com LLC, _ F.4th _, 2025 WL 2177719 (11th Cir. Aug. 1, 2025), the Eleventh Circuit affirmed the district court’s decision to dismiss a putative consumer class action alleging that a swimwear company had failed to disclose payments to social media influencers — reasoning that the alleged fraudulent conduct was not pleaded with sufficient particularity.
In 2022, Plaintiff sued a swimwear company and several social media influencers for alleged violations of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”). Plaintiff alleged that he purchased swimwear from the swimwear company after seeing various social media influencers wearing its products. Plaintiff alleged that at the time of his purchase, he believed that the influencers were giving their unpaid endorsements of the products, when in reality the swimwear company was paying the influencers to post endorsement content. The core of Plaintiff’s complaint was that the swimwear company and the influencers’ failure to disclose the endorsement arrangement violated the FDUTPA. The federal district court dismissed the complaint with prejudice after finding that Plaintiff’s claim sounded in fraud, and therefore had to meet the heightened particularity requirement of Federal Rule of Civil Procedure 9(b).
The Eleventh Circuit agreed that Rule 9(b)’s particularity requirement applied to Plaintiff’s claim, and in doing so rejected Plaintiff’s argument that Rule 9(b) should not apply because he was alleging a state statutory violation—reasoning that was merely a difference in “styling” and not in substance. The court reasoned that any claim “that ‘sounds in fraud’ based on the allegations underlying the claim” must comply with Rule 9(b)’s particularity requirement. And Plaintiff’s allegations “closely track the elements of common law fraud” because he pleaded that the swimwear company and influencers (1) made an actionable misrepresentation, (2) failed to disclose material facts, (3) did so intentionally, and (4) Plaintiff relied on these misrepresentations to his detriment.
Applying Rule 9(b), the Eleventh Circuit held that Plaintiff failed to plead the “who, what, when, where, and how” of the fraudulent conduct; instead, all Plaintiff alleged was that the swimwear company and the influencer defendants devised some kind of unspecified scheme without providing any detail regarding which influencers made which posts and how those posts induced any putative class members to make a purchase. And the Eleventh Circuit affirmed the district court’s decision to dismiss the complaint with prejudice because Plaintiff had not properly sought leave to amend.
The Eleventh Circuit’s holding underscores the importance of detailed and particularized information in pleadings that make allegations sounding in fraud, and the benefits defendants can obtain by demanding compliance with Rule 9(b).
The Eleventh Circuit’s decision is available here.