Case 0:20-cv-60981-RKA Document 1 Entered on FLSD Docket 05/19/2020 Page 1 of 33
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
`FT. LAUDERDALE DIVISON
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`
`
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`Case No. _____________
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`
`
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`CAFÉ, GELATO & PANINI LLC, d/b/a/
`CAFÉ GELATO PANINI, on behalf of itself
`and all others similarly situated,
`
`
`
`
`Plaintiffs,
`
`v.
`
`
`SIMON PROPERTY GROUP, INC.,
`SIMON PROPERTY GROUP, L.P., M.S.
`MANAGEMENT ASSOCIATES, INC., and
`THE TOWN CENTER AT BOCA RATON
`TRUST,
`
`
`
`
`
`Defendants.
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`
`
`CLASS ACTION COMPLAINT
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`I.
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`INTRODUCTION
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`1.
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`When a landlord rents mall space to small businesses, it must follow state laws and
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`regulations that forbid turning providing utilities into a profit center for secret excess rent.
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`Likewise, when a mall landlord promises a tenant in written contract that it will not mark-up its
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`electricity rate, it must honor that contractual obligation. But Simon Property Group, Inc.
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`(“Simon”), broke these basic rules. Through a pernicious shell game of corporate entities, Simon
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`for years executed a fraudulent scheme through a criminal enterprise to overcharge small business
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`tenants for electricity at all of its shopping malls throughout the United States.
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`2.
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`Simon conducts its business through Simon Property Group, L.P. (“Simon
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`Partnership”) and, through Simon Partnership, owns M.S. Management Associates, Inc. (“M.S.
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`Management”). M.S. Management is responsible for managing Simon’s shopping malls
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`nationwide. Simon creates single purpose entities to own the shopping malls and places those
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`single purpose entities into holding companies owned by Simon Partnership, with the vast majority
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`of profits and revenues flowing back to Simon from those operations. M.S. Management manages
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`and conducts all the business activities of those single purpose entities.
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`3.
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`Simon directed and required M.S. Management to use standard lease agreements
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`that falsely represented that the tenants at the shopping malls it ultimately owned would be charged
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`the amount that the shopping malls were charged by the local utility providers to supply those
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`tenants with electricity. That is, Simon Partnership, at the direction and behest of Simon, caused
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`M.S. Management to represent to the tenants that the tenants would pay the same amount for
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`electricity that the tenants would pay if they were purchasing the electricity directly from the local
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`utility. Despite the contractual obligations and representations, Simon, Simon Partnership, M.S.
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`Management, and other unnamed co-conspirators engaged in a racketeering enterprise and
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`conspiracy, breached the lease agreements with tenants, and violated applicable state laws and
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`regulations by inflating the tenants’ electric bills. Sometimes, the fraudulent and illegal markups
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`exceeded 100% of the tenant’s actual electricity usage charges.
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`4.
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`In an effort to conceal its wrongful and illegal conduct, Simon caused M.S.
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`Management to insert into the lease agreements a clause requiring the tenants at the shopping
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`malls, ultimately owned and controlled by Simon through its holding companies, to waive their
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`right to audit the shopping malls’ electric bills in exchange for agreeing that the electricity charges
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`would not be marked-up. Whenever tenants raised issues about their electricity costs, Simon
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`caused M.S. Management to inform the tenants that they had waived their audit rights under the
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`lease agreement and instructed M.S. Management not to provide the tenants with the actual
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`electricity bills from the utilities, which would have revealed the undisclosed mark-ups.
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`5.
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`In furtherance of its fraudulent and illegal scheme, Simon had Valquest, an
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`independent third-party energy company, provide its customers with inflated energy surveys to
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`justify the marked-up electrical charges. Simons’ scheme allowed it to take advantage of the
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`tenants by: (1) fraudulently misrepresenting to them that their electricity charges were not being
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`marked-up; (2) actually having the electrical charges marked-up in contravention of the lease
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`agreement; and (3) covering up that illegal conduct by using the audit waiver provision to shield
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`it from scrutiny. Simon knew it was much bigger, and much better financed than the thousands of
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`small business owners nationwide who rented mall spaces from it. In exploiting this inequality,
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`Simon used its vast resources and superior negotiating and bargaining power to actively victimize
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`and defraud tenants – simply to reap unfair, improper, and illegal profits.
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`6.
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`Plaintiff Café, Gelato & Panini LLC, d/b/a/ Café Gelato Panini (“Café Gelato”) was
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`a tenant at The Town Center at Boca Raton (“TCBR”), which Simon owns through a single
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`purpose entity, The Town Center at Boca Raton Trust (“The Trust”). For years Simon, through
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`Simon Partnership, caused M.S. Management and The Trust to lie to Café Gelato by telling Café
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`Gelato that it was only paying its share of the actual electricity charges at TCBR. In truth, for
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`years Café Gelato was tricked into paying thousands of dollars in illicit electricity mark-ups, the
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`vast majority of which were ultimately paid to Simon. Café Gelato brings this class action lawsuit
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`on behalf of itself and all other similarly situated current and former tenants to: (1) end Simon’s
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`illegal conduct; (2) require that the terms of the lease agreements be honored by charging the
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`tenants at the shopping malls that Simon owns through its holding companies their actual
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`electricity costs going forward; and (3) return to current and former tenants the illegal electricity
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`mark-ups that were charged to them and retained for years on end, as well as appropriate damages,
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`interest, and penalties as permitted under the applicable statutes.
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`II.
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`PARTIES
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`7.
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`Plaintiff Café, Gelato & Panini LLC, d/b/a/ Café Gelato Panini (“Café Gelato”) is
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`a Florida limited liability company and has its principal place of business in Florida. Café Gelato
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`is an upscale Italian/Argentinian bistro located at TCBR. Café Gelato signed a 5-year lease with
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`the Trust for its location at TCBR on October 24, 2014. (Café Gelato Lease, Ex. A). During its
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`lease, Café Gelato received invoices through the United States mail for its electric costs, frequently
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`issued on Simon letterhead, which Café Gelato believed were the amounts charged by the local
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`utility without any mark-up because of the representations contained in the lease agreement. Café
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`Gelato paid the full amount of those invoices.
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`8.
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`Simon Property Group, Inc. (“Simon”) is a Real Estate Investment Trust (“REIT”)
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`headquartered in Indianapolis, Indiana, has its principal place of business in Indiana, and is
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`incorporated under the laws of Delaware. The shopping mall empire that is Simon Property Group
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`began in 1960, when Melvin Simon, a leasing agent, founded Melvin Simon and Associates
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`(“MSA”). In 1993, MSA took the majority of the assets it had amassed to Wall Street through the
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`formation of Simon Property Group (“SPG”). SPG’s $840 million initial public offering was at
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`the time the largest in U.S. history, and the company began trading on the NYSE under the ticker
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`symbol SPG. Today, Simon is the largest REIT in the world. As of December 31, 2019, Simon
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`owned or held interests in over 200 income-producing properties in the United States alone.
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`9.
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`Simon Property Group, L.P. (“Simon Partnership”) holds, directly or indirectly,
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`substantially all of Simon’s assets, including Simon’s ownership interests in joint ventures, and
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`conducts substantially all of Simon’s business. Simon Partnership is organized under the laws of
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`Delaware, and has its principal place of business in Indianapolis, Indiana.
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`10. M.S. Management Associates, Inc. (“M.S. Management”) is incorporated under the
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`laws of Delaware and has its principal place of business in Indianapolis, Indiana. M.S.
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`Management is one of Simon and Simon Partnership’s significant subsidiaries. Simon, through
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`Simon Partnership, uses M.S. Management to conduct its property management and development
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`activities nationwide. M.S. Management was responsible for managing TCBR.
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`11.
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`Simon’s revenues are primarily derived from leases with retail tenants and
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`generally include fixed minimum rents, percentages of rents based on tenants’ sales volumes, and
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`reimbursements from tenants for expenditures related to real estate taxes, insurance, common area
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`maintenance, electrical charges, and other recoverable operating expenses, as well as certain
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`capital expenditures. Simon also generates revenues from management, leasing and development
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`fees, sponsorships, sales of peripheral land at its properties and from sales of its real estate assets.
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`The vast majority of the revenues and profits from Simon Partnership, M.S. Management, and the
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`single purpose entities held indirectly by Simon flow directly back to Simon.
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`12.
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`The Town Center at Boca Raton Trust (“The Trust”) is a New York Trust with its
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`principal place of business in Indianapolis, Indiana.
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`13.
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`Simon, Simon Property, M.S. Management, and The Trust are not regulated public
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`utilities or electric utilities subject to the jurisdiction of the Florida Public Service Commission.
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`Regardless, the marking-up of electrical charges is fraudulent conduct separate and distinct from
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`the regulation and sale of electricity.
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`III.
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`JURISDICTION
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`14.
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`This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.
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`§ 1332(d)(2)(a), because this is an action for an amount exceeding $5,000,000, exclusive of
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`interest and costs, and in which at least one class member is a citizen of a state different than all
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`of the Defendants. Subject matter jurisdiction also arises under 28 U.S.C. § 1331 based upon the
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`federal RICO claims asserted under 18 U.S.C. § 1961 et seq. The Court has personal jurisdiction
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`over the Defendants pursuant to 18 U.S.C. §§ 1965(b) and (d), and supplemental jurisdiction over
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`the state-law claims pursuant to 28 U.S.C. § 1367.
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`15.
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`This Court also has personal jurisdiction over the Defendants, because they
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`continuously and systematically operate, conduct, engage in, and carry on business in Florida by
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`owning, managing, and operating at least 24 retail shopping centers in Florida. The Court also has
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`specific personal jurisdiction over the Defendants because the Defendants’ wrongful conduct
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`occurred in this district. Accordingly, the Defendants are subject to Florida’s long arm jurisdiction
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`under Fla. Stat. § 48.193.
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`16.
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`Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b)(2), because
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`Defendants’ registered agent is located in Broward County, Florida, which is in this judicial
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`district. In addition, Café Gelato’s causes of action accrued within this judicial district and a
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`substantial part of the events, acts, and omissions giving rise to Café Gelato’s claims occurred
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`here. Furthermore, the Defendants routinely operate and solicit business in this district, and the
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`Defendants’ wrongful acts in this district have impacted the general public of this district.
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`IV.
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`FACTUAL ALLEGATIONS
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`A.
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`Café Gelato Entered Into A Lease With The Trust To Rent Retail Space At TCBR.
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`17.
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`Simon, through Simon Partnership, created a single purpose entity, The Trust,
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`which owns TCBR. TCBR is a retail shopping center featuring over 200 different stores and
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`eateries located in Boca Raton, Florida. Simon caused Simon Partnership to hold The Trust in one
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`of its holding companies. TCBR is managed exclusively by M.S. Management, managing the
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`shopping mall, and conducting all other related functions at TCBR.
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`18.
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`Julian Mancinelli is the majority member and was the day-to-day manager of Café
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`Gelato. Mr. Mancinelli works in the retail service industry and has owned and operated various
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`cafes and bistros throughout his career. Mr. Mancinelli first began operating Café Gelato at TCBR
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`in 2010. While the rent at TCBR was substantially more expensive than at other locations, Mr.
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`Mancinelli hoped that the location would increase his sales and allow his business to grow.
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`19.
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`On October 24, 2014, Café Gelato and the Trust entered into a 5-year lease
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`agreement for its retail space at TCBR. (Attached as Exhibit A). The leased premises were to be
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`used and operated as a business in the retail sale of Italian gelato, gourmet Panini’s, non-alcoholic
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`beverages, and bakery products.
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`20.
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`Among the various provisions in Café Gelato’s lease agreement was the
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`following:
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`Section 7.1 Utilities . . . Tenant shall be solely responsible for and
`promptly pay all charges for use or consumption of sewer, gas,
`electricity, water and all other utility services. Landlord may make
`electrical service available to the Premises, and so long as
`Landlord continues to provide such electrical service Tenant
`agrees to purchase the same from Landlord and pay Landlord
`for the electrical service (based upon Landlord's determination
`from time to time of Tenant's consumption of electricity), as
`additional rent, on the first day of each month in advance (and
`prorated for partial months), commencing on the Commencement
`Date at the same cost as would be charged to Tenant from time
`to time by the utility company which otherwise would furnish
`such services to the Premises if it provided such services and
`metered the same directly to the Premises, but in no event at a
`cost which is less than the cost Landlord must pay in providing such
`electrical service.
`
`(Ex. A at § 7.1) (emphasis added).
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`21.
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`Simon, acting through Simon Partnership, caused M.S. Management and The Trust
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`to put § 7.1 into the lease agreements that were used at TCBR. Pursuant to § 7.1 of the lease
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`agreement, The Trust uniformly promised Plaintiff and every tenant at TCBR that they would be
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`charged the same for their electricity as if they were being billed directly by the local utility
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`company. Accordingly, the tenants were to receive their electricity at the rate paid by The Trust
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`at TCBR without any additional mark-up. These representations and practices were repeated at
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`Simon malls around the country in a materially uniform manner.
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`22.
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`Simon, acting through Simon Partnership, caused M.S. Management and The Trust
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`to also insert an audit waiver provision in the lease agreement requiring the tenants at TCBR to
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`waive any right to audit the invoices and records to determine whether they were actually being
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`charged the correct amount for electricity. Pursuant to § 6.2 of the lease agreement, “Tenant shall
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`have no right to audit Landlord’s books and records . . . .” (Ex. A at § 6.2). This practice was
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`repeated at Simon malls around the country in a materially uniform manner.
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`B.
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`Cafe Gelato Attempts To Mitigate Its Exorbitant Electrical Charges.
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`23.
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`Café Gelato made a substantial investment in building out the retail space it rented
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`at TCBR, believing that it would be a profitable location and that Simon would bill Café Gelato
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`for electricity based on the kilowatt hours it actually used at the same rate that it would otherwise
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`be charged, without any mark-up by Simon of the electric rate. Mr. Mancinelli invested in high-
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`end, energy efficient equipment in order to mitigate his electrical costs.
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`24.
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`Shortly after Cafe Gelato opened its location at TCBR, it began receiving as part of
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`its monthly invoice through the U.S. mail a line item cost for electricity. (See Café Gelato’s
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`Invoice, attached as Exhibit B).
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`25. When Café Gelato first began its operations at TCBR, it was relatively profitable
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`due to anticipated foot traffic and other benefits of the location. Because of this, Café Gelato was
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`able to maintain its operations, despite the continuing and unexpectedly-high electricity charges.
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`26.
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`Over time, however, the foot traffic at TCBR decreased as consumers began
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`shopping more online, and Cafe Gelato began to see a substantial drop in its revenue. However,
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`despite this decrease in business and the corresponding decrease in Café Gelato’s use of its
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`electrical equipment, the electricity bills that Simon sent Café Gelato through the U.S. mail never
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`decreased substantially. Indeed, Café Gelato’s electricity bills continued to average close to $500
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`per month.
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`27.
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`Cafe Gelato struggled over the next few years as revenues decreased as a result of
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`the reduction of customers visiting TCBR. During this time, Cafe Gelato did everything it could
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`to cut costs in order to maintain its revenues.
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`28.
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`Other than Cafe Gelato’s rent, one of its largest business expenses was electricity.
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`Each year, Simon would send purported technicians that surveyed Café Gelato’s business location
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`and its electrical equipment supposedly for the purpose of providing a true and accurate estimate
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`of Café Gelato’s energy consumption. But, those electrical estimates were intentionally inflated
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`and the electrical rate intentionally marked-up.
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`29.
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`Café Gelato continued to struggle financially as a result of decreased business, high
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`rent, and high electricity bills. When Café Gelato fell behind in its rent payments, it communicated
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`with Simon in good faith for relief, but to no avail. Simon continued to charge Café Gelato high
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`rents and exorbitant electricity charges that eventually became untenable.
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`C.
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`Simon Conspired With Valquest To Inflate Cafe Gelato’s Energy Surveys.
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`30.
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`Valquest Systems, Inc. (“Valquest”), is an energy company based in Texas that,
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`among other things, conducts and provides energy surveys and audits. Simon contracted with
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`Valquest to provide tenants at the various shopping malls that were owned by Simon through its
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`holding companies with energy surveys that were used to project energy costs for a storefront
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`location or to substantiate the energy costs that either M.S. Management or Simon billed and sent
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`its tenants.
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`31.
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`Sometime in the second quarter of 2005, Simon entered into an agreement and
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`conspired with Valquest and directed Valquest to artificially inflate the amount of the electricity
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`costs in the energy surveys provided to the tenants that rented space at malls that were owned by
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`Simon through its holding companies. Valquest artificially inflated the electricity costs in return
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`for the payments it received from Simon for conducting the falsified energy surveys. Simon and
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`Valquest knew the Valquest surveys were inaccurate because they inflated the tenants’ electricity
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`costs and Simon knew what the true costs were. Indeed, Simon resold electricity to its tenants at
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`rates higher than what it paid per kilowatt hour in violation of Florida law.
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`32.
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`For example, even after Cafe Gelato’s business and corresponding electricity
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`consumption decreased substantially, Simon continued to provide Café Gelato with charge backup
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`reports that overstated Café Gelato’s electricity usage and the electric rate in order to substantiate
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`the marked-up electrical charges. (See Charge Backup Report, attached as Exhibit C). Simon
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`continued to use the inflated energy surveys to hide its illegal conduct and the illegal conduct of
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`its co-conspirators Valquest, Simon Partnership, M.S. Management, The Trust, and the single
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`purpose entities it created to own its shopping malls. Simon directly profited from the illegal
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`conduct by knowingly and intentionally marking up Cafe Gelato’s electricity charges and also by
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`causing M.S. Management to knowingly and intentionally mark-up Cafe Gelato’s electrical
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`charges. Simon shared those illicit profits with Valquest by paying Valquest’s fees for the surveys,
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`even though it knew and intended those surveys to be inaccurate.
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`D.
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`Simon’s Fraud Is Revealed At Town Center at Boca Raton.
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`33.
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`In early 2020, Mr. Mancinelli began reviewing the records of his business
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`operations at TCBR and the amounts that Simon had charged him for electricity over time. As a
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`result of this process, Mr. Mancinelli first began to suspect that he had been defrauded.
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`E.
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`Simon Overcharges Tenants Nationwide At The Malls It Owns Through Holding
`Companies.
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`34.
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`Simon’s practice of overcharging the tenants at the malls it owns through its holding
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`companies for electricity is not isolated to TCBR. Simon has a nationwide policy and practice of
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`charging the tenants that rent space at the shopping malls it owns through its holding companies
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`in excess of their actual costs for electricity and resold electricity to its tenants at rates higher than
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`what it paid per kilowatt hour, irrespective of the standard and uniform written contracts that it
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`causes M.S. Management to provide to the tenants and of the laws of the states in which Simon
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`operates.
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`35.
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`Simon, acting through Simon Partnership, creates single purpose entities to
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`purchase the shopping centers that are held by Simon. Simon then causes Simon Partnership to
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`hire M.S. Management to operate those shopping centers. Simon, acting through Simon
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`Partnership, causes M.S. Management and the single purpose entities that own the shopping malls,
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`to insert the equivalent of § 7.1 into each and every lease rental agreement used with the tenants
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`that rent space at their malls. As noted above, § 7.1 uniformly states that:
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`Tenant agrees to . . . pay Landlord for the electrical service . . . at
`the same cost as would be charged to Tenant from time to time
`by the utility company which otherwise would furnish such
`services to the Premises if it provided such services and metered
`the same directly to the Premises . . .
`
`(Ex. A at § 7.1) (emphasis added).
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`36.
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`Thus, at every mall that Simon owns through its holding companies, they use the
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`same uniform and standard lease agreement that promises the tenants that they would be charged
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`the same for their electricity as if they were being billed directly by the local utility company.
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`Accordingly, the tenants at every shopping mall owned by Simon through its holding companies
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`were to receive their electricity at the cost the shopping mall incurred without any additional mark-
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`up.
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`37.
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`Similarly, and as described above, Simon, acting through Simon Partnership,
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`caused M.S. Management and the single purpose entities that nominally owned the shopping malls
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`held in the holding companies, to insert an audit waiver provision in the lease agreement requiring
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`the tenants at all of those shopping malls to waive any right to audit the invoices and records to
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`determine whether they were actually being charged the correct amount for electricity. Pursuant
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`to § 6.2 or its equivalent of the standard lease agreements, “Tenant shall have no right to audit
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`Landlord’s books and records . . . .” (Ex. A at § 6.2).
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`38.
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`Simon’s conspiracy with Valquest was uniform and nationwide. Simon directly
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`profited from the illegal conduct by knowingly and intentionally causing M.S. Management and
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`its single purpose entities to mark-up the tenants’ electrical charges at the malls Simon owned
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`through its holding companies. Simon shared those illicit profits with Valquest by paying
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`Valquest’s fees for surveys, even though it knew and intended those surveys to be inaccurate.
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`39.
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`Despite the lease rental agreements’ promise to charge the tenants at the malls
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`Simon owned through its holding companies no more than what the malls paid for electricity,
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`Simon, through Simon Partnership, caused M.S. Management and the single purpose entities to
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`charge the tenants more for electricity than what the malls actually paid the local utility companies
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`for that electricity. Accordingly, due to Simon’s deceitful practice which resulted in the breach of
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`the lease agreements, the tenants at the malls Simon owns through its holding companies suffered
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`significant and substantial damages in excess of $100,000,000.
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`V.
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`CLASS ACTION ALLEGATIONS
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`
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`40.
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`Plaintiff brings this action against Defendants pursuant to Rules 23(a), (b)(2), and
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`(b)(3), of the Federal Rules of Civil Procedure, on behalf of itself and all other persons and entities
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`similarly situated. Plaintiff seeks certification of the following classes (referred to collectively as
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`the “Class”):
`
`The Nationwide Class
`
`All tenants at shopping malls managed by M.S. Management whose
`electricity charges were determined based on a Valquest survey
`within the applicable limitations period.
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`Excluded from the Nationwide Class are Simon, Simon Partnership,
`M.S. Management, and The Trust and their affiliates and related
`companies, their directors, corporate officers, and their immediate
`family members, and any government entity.
`
`The Florida Statutory Class
`
`All tenants at shopping malls in Florida managed by M.S.
`Management whose electricity charges were determined based on a
`Valquest survey within the applicable limitations period.
`
`Excluded from the Florida Statutory Class are Simon, Simon
`Partnership, M.S. Management, and The Trust and their affiliates
`and related companies, their directors, corporate officers, and their
`immediate family members, and any government entity.
`
`
`
`The TCBR Class
`
`All tenants at TCBR whose electricity charges were determined
`based on a Valquest survey within the applicable limitations period.
`
`Excluded from the TCBR Class are Simon, Simon Partnership,
`Simon Management, and The Trust and their affiliates and related
`companies, their directors, corporate officers, and their immediate
`family members, and any government entity.
`
`A.
`
`Numerosity
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`41.
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`The Nationwide Class consists of thousands of current and former tenants who
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`entered into lease agreements at shopping malls managed by M.S. Management and ultimately
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`owned by Simon through its holding companies for the purpose of using the premises for retail
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`activities and related services. The Florida Statutory Class consists of thousands of current and
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`former tenants at malls managed by M.S. Management in Florida who were charged more than
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`their actual electricity costs for their electricity use at those malls. Finally, the TCBR Class
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`consists of hundreds of current and former tenants at TCBR who were charged more than their
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`actual electrical costs at TCBR.
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`42.
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`The names and addresses of all Class members can be identified in the business
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`records maintained by the Defendants. The precise number of Class members will be obtained
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`Case 0:20-cv-60981-RKA Document 1 Entered on FLSD Docket 05/19/2020 Page 14 of 33
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`through discovery but based on publicly available information, the numbers are clearly more than
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`can be consolidated in one action, and it is impractical for each Class member to bring suit
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`individually. For example, Simon’s annual reports indicates that it owns over 200 mall properties
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`across the United States, including 24 mall properties in Florida. Those malls contain tens of
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`millions of rentable square feet. As a result, there are likely hundreds of TCBR Class members,
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`thousands of Florida Statutory Class members, and at least tens of thousands of Nationwide Class
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`members, and due to turnover, the actual number of current and former tenants who are Class
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`members is likely a multiple of that amount. The Plaintiff does not anticipate any difficulties in
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`the management of the action as a class action.
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`B.
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`Commonality
`
`43.
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`There are questions of law and fact that are common to the claims of Plaintiff and
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`the Class. These common questions predominate over any questions that are particular to any
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`individual Class member. Among such common questions of law and fact are the following:
`
`a.
`
`b.
`
`c.
`
`d.
`
`e.
`
`Whether the Defendants marked up the electric rates that they charged the
`Class members;
`
`Whether The Trust breached its lease agreements by charging the TCBR
`Class members for electricity in excess of what The Trust paid the electric
`utility for that electricity;
`
`Whether The Trust breached the implied covenant of good faith and fair
`dealing in its lease agreements when it charged the TCBR Class members
`amounts for electricity greater than what The Trust paid the electric utility
`for that electricity;
`
`Whether the Defendants were unjustly enriched by receiving the profits
`from overcharged Class members for electricity in excess of the actual
`amounts charged by the electric utilities for that electricity;
`
`Whether the Defendants engaged in a deceptive and unfair business practice
`by misleading the Class members by causing M.S. Management to put in
`the lease agreement that it would not charge the tenants in excess of the
`actual costs for electricity and then causing M.S. Management to charge
`them amounts in excess of the actual electricity costs;
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`Case 0:20-cv-60981-RKA Document 1 Entered on FLSD Docket 05/19/2020 Page 15 of 33
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`f.
`
`g.
`
`h.
`
`i.
`
`j.
`
`Whether Defendants have a policy or practice of overcharging the Class
`members for energy costs at all of the locations owned by Simon through
`its holding companies in direct contravention of the lease agreements;
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`Whether the Defendants in conjunction with Valquest formed a criminal
`enterprise with the intention of overcharging the Class members for
`electricity;
`
`Whether the Defendants violated 18 U.S.C. § 1962;
`
`Whether the Defendants violated Florida’s Civil RICO statutes; and
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`The amount of damage the Class members sustained as a result of the
`Defendants’ wrongful conduct, and the proper measure of such damage.
`
`C.
`
`Typicality
`
`44.
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`Plaintiff’s claims are typical of the claims of the Class because of the similarity,
`
`uniformity, and common purpose of the Defendants’ unlawful conduct. Each Class member has
`
`sustained damages as a result of the Defendants’ wrongful conduct in the same manner as the
`
`Plaintiff – that is, each Class member was charged in excess of what the actual costs were for
`
`electricity, contrary to: (1) the express terms of the uniform lease agreements where those
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`agreements required that the Class members be charged no more than what the shopping malls
`
`paid the utility for that electricity; and (2) applicable law.
`
`D.
`
`Adequacy of Representation
`
`45.
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`Plaintiff is an adequate representative of the Class and will fairly and adequately
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`protect the interests of the Class. Plaintiff is committed to the vigorous prosecution of this action
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`and has retained competent counsel, experienced in litigation of this nature, to represent it. There
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`is no hostility between Plaintiff and the unnamed Class members. Plaintiff anticipates no difficulty
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`in the management of this litigation as a class action.
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`Case 0:20-cv-60981-RKA Document 1 Entered on FLSD Docket 05/19/2020 Page 16 of 33
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`46.
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`To prosecute this case, Plaintiff has chosen the law firms of Buckner + Miles and
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`Kelley Uustal. These law firms are experienced in class action litigation and have the financial and
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`legal resources to meet the substantial costs and legal issues associated with this type of litigation.
`
`E.
`
`Requirements of Fed. R. Civ. P. 23(b)(3)
`
`1.
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`Predominance
`
`47.
`
`The questions of law or fact common to the claims of the Plaintiff and the Class
`
`predominate over any questions of law or fact affectin