Case 1:22-cv-23753-KMM Document 163 Entered on FLSD Docket 04/26/2023 Page 1 of 13
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
`MIAMI DIVISION
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`CASE NO. 1:22-cv-23753-KMM
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`Plaintiffs,
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`EDWIN GARRISON, et al., on behalf of
`Themselves and all others similarly situated,
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`v.
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`SAM BANKMAN-FRIED, et al.,
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`Defendants.
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`_________________________________________/
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`PLAINTIFFS’ EXPEDITED MOTION FOR LEAVE TO CONDUCT JURISDICTIONAL
`DISCOVERY, AND TO AMEND THEIR COMPLAINT WITH ANY FACTS ARISING
`FROM SUCH DISCOVERY
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`Plaintiffs, pursuant to Local Rule 7.1(d)(2), respectfully move the Court to enter an order
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`granting Plaintiffs leave to: (1) take brief jurisdictional discovery from Defendants, Stephen Curry,
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`Larry David, Golden State Warriors, LLC, Shohei Ohtani, and Naomi Osaka (collectively, “FTX
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`Non-Florida Defendants”) prior to a ruling on Defendants’ jurisdictional arguments; and (2) to file
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`their first substantive amendment to the Complaint within twenty (20) days after completing that
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`brief jurisdictional discovery, so Plaintiffs’ may incorporate any additional facts that support
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`personal jurisdiction over these FTX Non-Florida Defendants and address arguments raised in all
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`Defendants’ motions to dismiss.
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`This is the same, exact reasonable discovery that was opposed by defendants in
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`Undersigned Counsel’s related Voyager Digital cases, and required to be produced by Chief Judge
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`Altonaga, Judge Altman, and Magistrate Judge Reid, in various Orders based specifically on
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`Eleventh Circuit precedent, in the pending related Voyager Digital class actions. See Composite
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`Exhibit A. All FTX Defendants continue to argue and reiterate that none of these prior Orders by
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`CASE NO. 1:22-cv-23753-KMM
`this Court are in “in any manner” relevant to this inquiry, and cannot even be “considered by this
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`Court,” but they are in fact based upon extremely analogous facts. For example, Voyager and Mr.
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`Cuban specifically argued the cases against them should be dismissed for a lack of personal
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`jurisdiction, alleging they had “no connection to Florida.” However, the plethora of evidence that
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`was obtained in discovery demonstrated that not only was Florida one of the “main” targets for
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`their promotion of Voyager’s unregistered securities, but it was also one of the most targeted states,
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`and thus tens of thousands of Florida residents, in fact, suffered millions in damages from
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`defendants’ offer and sale of these unregistered securities. Here, there is no dispute that FTX
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`(unlike Voyager) conducted its activities from its headquarters here in Miami, Florida, and there
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`can be no dispute that these Defendants’ activities were certainly not confined to some limited
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`geographic area.
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`All 18 FTX Defendants have, as of today, now definitively informed Plaintiffs that: (1)
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`they have unilaterally decided not to respond to any discovery that Plaintiffs would serve following
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`the initial Scheduling Conference, pending the Court’s ruling on their Motions to Dismiss
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`(jurisdictional and/or merits) (while Judge Altman denied a very similar Motion to Stay All
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`Discovery in the related Voyager litigation, See Comp. Ex. A); and (2) they request the Court rely
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`upon their newly filed, Sworn FTX Defendant Declarations, where they make new arguments to
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`support an alleged lack of personal jurisdiction (such as they were not just “physically present” in
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`Florida), but will not allow Plaintiffs to test any such arguments, as was specifically ordered in the
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`Voyager cases also pending before this Court.
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`Plaintiffs diligently worked to confer with Defendants on these issues immediately after
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`they filed their motions, but Defendants as a group were only available for a meet and confer on
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`April 24, 2023, and a follow-up today, April 26, 2023, before they made clear this issue required
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`CASE NO. 1:22-cv-23753-KMM
`Court intervention. Plaintiffs’ responses to the pending Motions to Dismiss are currently due
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`Monday, May 15, 2023; therefore, absent an expedited ruling before that date, this matter will
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`likely not be fully briefed and decided under the rules until after that current deadline.
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`I.
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`BACKGROUND
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`This Court has acknowledged that all of these related FTX cases involve a main question
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`of whether FTX’s offerings are securities that need to be registered by the SEC. See Norris, et al.
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`v. Brady, et al., No. 1:23-cv-20439-KMM (“Norris”), ECF Nos. 43, 45. If the Court decides that
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`question in the affirmative, the only remaining question will be whether these FTX Defendants
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`“aided and abetted” in the offer and sale of such unregistered securities under Florida law.
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`The FTX Non-Florida Defendants moved on Friday, April 14, 2023, to dismiss the
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`complaint for lack of personal jurisdiction. ECF No. 139. Relying on newly filed declarations of
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`Defendants Stephen Curry, Larry David, and Shohei Ohtani, these FTX Defendants argue that the
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`entire case against them should be dismissed, because this Court lacks specific jurisdiction over
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`them.1 But the declarations contain only general assertions regarding where the declarants live and
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`where they negotiated and signed their individual contracts. As demonstrated by the FTX Contracts
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`produced in Norris by Brady, Ortiz, and O’Leary in support of their opposition to the motion to
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`remand, these contracts are all varied in their requirements, with some requiring FTX Brand
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`Ambassadors to create and publish numerous “social media posts,” autograph a certain number of
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`1 Defendants advance these arguments even in the face of allegations that, for instance, Defendant
`Osaka specifically attended matches in Miami wearing her FTX kit as part of the promotional
`activities for which she was paid by FTX, [ECF No. 16 ¶ 227], or that Defendant Golden State
`Warriors promoted the FTX Platform and its unregistered offerings through branding FTX as the
`“Official Crypto Platform and NFT Marketplace of the Golden State Warriors,” as a result of
`FTX being their “first international rights partner,” meaning they jointly advertised together on an
`international basis, and the Golden State Warriors dropped NFTs on the FTX Platform and
`promoted FTX throughout their G League and eSports teams, also internationally. ECF No. 16 ¶¶
`222–223 (emphasis in original).
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`3
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`items per year, launch NFTs across the country through FTX, conduct virtual meetings and
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`lunches, host FTX charity events, etc.
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`While Defendants assert that certain information must be filed under seal (and thus
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`Plaintiffs will not be attaching them hereto or providing specifics), the few materials which were
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`provided in the related Norris action were also produced in redacted form, some with complete
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`paragraphs redacted (without any table or index to provide context) as well as all of the details
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`regarding their compensation. All of this information was compelled by this Court in the related
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`Voyager cases. See Comp. Ex. A. Plaintiffs have requested, but have been denied, any fully
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`unredacted copies of these relevant materials. Further, Defendants attempt to handicap Plaintiffs
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`in their efforts to address these specific questions. For example, Mr. David alludes in his
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`declaration to an “FTX Restricted Stock Purchase Agreement,” which he references generally, but
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`refuses to produce in this litigation. See ECF No. 139-2, at n.1.
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`Some of these FTX Contracts specifically require the Defendants to collaborate with the
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`FTX advertising company on these scripts (i.e., such as the fraudulent FTX “I am All In”
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`Campaign), via phone and emails, and preclude these celebrities from promoting any FTX
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`competitors, in any manner. At a minimum, Defendants’ declarations (just like those provided in
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`Voyager) inject issues that cannot be resolved by the Court, or adequately addressed by Plaintiffs,
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`absent some limited jurisdictional discovery and supplemental briefing and/or amended pleadings
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`before the Court rules on Defendants’ jurisdictional arguments.
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`Plaintiffs have been attempting for weeks to confer with Defendants on discovery. In
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`response, Defendants have largely either ignored the requests or have indicated that they all need
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`“proposed dates and times a week in advance (at minimum)” before they can schedule any time to
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`4
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`confer with Plaintiffs.2 After reviewing Defendants’ Motions to Dismiss, Plaintiffs requested a
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`meet and confer to discuss discovery in connection with the motions to dismiss. Plaintiffs also sent
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`proposed jurisdictional discovery (requests for production and deposition notices) to Defendants
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`to demonstrate how narrow the discovery sought was and to expedite the meet and confer process.
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`See Composite Exhibit B (proposed jurisdictional discovery requests). After two meet and confer
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`sessions, Defendants have now made it clear they will oppose Plaintiffs’ request for any
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`jurisdictional discovery (no matter how narrow) and instead have sought to stay all discovery.
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`Defendants take this position despite the fact that in two related cases against Voyager Digital and
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`the celebrities alleged to have promoted the offer and sale of unregistered securities, Judge
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`Altonaga, Judge Altman, and Magistrate Judge Reid all granted leave and allowed discovery on
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`personal jurisdiction to proceed based on very similar declarations filed by defendants in support
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`of their motions to dismiss for lack of personal jurisdiction, raising many of the same arguments
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`as Defendants here. See Comp. Ex. A.
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`Notably, Plaintiffs’ current Complaint has not gone through any substantive amendment,
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`and certainly not one after the filing of a Motion to Dismiss or after any discovery has been
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`produced, in that the amended complaint was filed December 16, 2023, to effect the consolidation
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`of the Garrison and Podalsky actions in accordance with this Court’s Order. Defendant O’Neal,
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`the last of the 18 Defendants was finally personally served April 16, 2023—10 days ago, within
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`the deadline to do so set by this Court. No scheduling conference has yet been held, nor is there a
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`case scheduling order. Indeed, the Court set a deadline of May 8, 2023, for the Parties to file a joint
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`2 Plaintiffs can provide the correspondence should the Court deem it necessary.
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`5
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`scheduling report after holding a scheduling conference once Defendant O’Neal was finally
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`located and personally served.3
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`In the Voyager Digital cases, this Court denied defendants’ motion to stay all discovery, in
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`part, because there was no showing, by declaration nor any evidence, that such requested discovery
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`was unduly burdensome. See Comp. Ex. A. In fact, all of that discovery was already taken in those
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`cases and is now completed. Certainly, none of these 18 FTX Defendants have made any showing
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`of “undue burden,” in fact, they argue just the opposite, that very little responsive discovery (if
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`any) should exist, conceding there is no burden.
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`Plaintiffs respectfully ask the Court at this stage for leave to conduct limited jurisdictional
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`discovery, and to afford a very brief period (20 days) following that discovery to allow them to file
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`their first amended complaint with substantive amendments, especially because “Courts routinely
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`allow such amendments to cure pleading deficiencies in service of the general principle that
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`“decisions on the merits are not to be avoided on the basis of ‘mere technicalities.’” Castros v.
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`Signal Fin. Co. LLC, 1:17-CV-21870-KMM, 2018 WL 1137099, at *1 (S.D. Fla. Feb. 4, 2018)
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`(Moore, C.J.) (collecting cases).4
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`3 The Parties have agreed to hold the Joint Conference this Friday, April 28, 2023.
`4 Granting Plaintiffs’ request would comport with the “policy of the federal rules []to permit liberal
`amendment to facilitate determination of claims on the merits and to prevent litigation from
`becoming a technical exercise in the fine points of pleading,” particularly where the proposed
`amendment would not violate any scheduling order in place and there is no “substantial reason” to
`deny the amendment, which “could include ‘undue delay, bad faith or dilatory motive, repeated
`failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing
`party, and futility of the amendment[,]’” none of which would apply since Plaintiffs would be
`providing their first substantive amendment to the complaint after, at a minimum, taking narrow
`discovery to address the jurisdictional arguments raised by some of the Defendants. Castros, 2018
`WL 1137099, at *1 (citations omitted).
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`6
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`II.
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`LEGAL ARGUMENT
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`Florida’s long-arm statute provides for both general and specific personal jurisdiction. The
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`Court has general personal jurisdiction over a defendant who has been “engaged in substantial and
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`not isolated activity within this state ... whether or not the claim arises from that activity.” Fla. Stat.
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`§ 48.193(2). Specific jurisdiction exists for claims arising out of certain discrete acts of a defendant
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`that occur in Florida, including “[c]omitting a tortious act within this state.” Fla. Stat. §
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`48.193(1)(a)(2) (2022).
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`In their complaint, Plaintiffs have invoked both general and specific jurisdiction as the
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`basis for personal jurisdiction over each of the FTX Defendants under the long arm statute by
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`alleging:
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`This Court has personal jurisdiction against Defendants because they conduct
`substantial and not isolated business in Florida, and/or have otherwise intentionally
`availed themselves of the Florida consumer market through the promotion,
`marketing, and sale of FTX’s YBAs in Florida, which constitutes committing a
`tortious act within the state of Florida. Defendants have also marketed and
`participated and/or assisted in the sale of FTX’s unregistered securities to
`consumers in Florida. Further, Defendants have engaged in a conspiracy in which
`some of the co-conspirators—including some who are Defendants in this action—
`committed overt acts in furtherance of the conspiracy in the State of Florida. This
`purposeful availment renders the exercise of jurisdiction by this Court over
`Defendants permissible under traditional notions of fair play and substantial justice.
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`[ECF No. 16, at ¶ 50]. The Complaint also alleges that “FTX organized and emanated its fraudulent
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`plan from its worldwide headquarters located here in Miami, Florida[,]” [ECF No. 16, at ¶ 8], that
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`FTX promoted the sale of unregistered securities in Florida by using celebrity endorsers, including
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`the Defendants, [ECF No. 16, at ¶ 16], and that FTX paid celebrity endorsers millions of dollars
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`to use the positive reputation associated with specific celebrities to convince consumers that FTX
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`was a safe place to buy and sell cryptocurrency. [ECF No. 16, at ¶¶ 193, 194].
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`None of the Defendants deny any of the Complaint’s material allegations that FTX
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`marketed its products to investors in, and from Florida through the use of paid celebrity
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`endorsements (many millions of dollars), or that FTX paid Defendants many millions of dollars to
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`promote FTX’s YBA’s to millions of investors worldwide, including in Florida. Instead, the
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`Defendants’ jurisdictional declarations—exactly like the ones provided by Messrs. Cuban and
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`Ehrlich in the Voyager cases—contain only general assertions regarding where the Defendants live
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`and where they physically negotiated and signed their individual contracts with FTX.
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`More importantly, none of the FTX Non-Florida Defendants challenging jurisdiction have
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`even attached copies of their FTX Agreements to which they repeatedly allude in their respective
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`newly sworn declarations.5
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`Further, for purposes of specific jurisdiction under Florida’s long arm statute, the issue is
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`whether Defendants’ tortious acts caused injury in Florida. See Louis Vuitton Malleties, S.A. v.
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`Mosseri, 736 F.3d 1339, 1354 (11th Cir. 2013) (“[W]e conclude that under Florida law where
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`Mosseri created the websites and posted the alleged infringing material does not matter. For
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`purposes of § 48.193(1)(a)(2), the issue is whether Mosseri’s tortious acts caused injury in
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`Florida.”). Defendants’ general denials of contacts with Florida do not address whether these
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`Defendants nevertheless committed a tortious act within Florida by knowingly and purposely
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`promoting FTX’s products and services to Florida residents who purchased those products and
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`services based on Defendants’ promotional activities, even if conducted outside of Florida. See
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`Licciardo v. Lovelady, 544 F.3d 1280, 1283 (11th Cir. 2008) (holding that, under Florida law, a
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`5 Defendant David moved for leave to file under seal one of the two referenced agreements in his
`Declaration, [ECF No. 146], which motion is pending, but has to date failed to provide a copy of
`either to Plaintiffs, redacted or otherwise, despite Plaintiffs’ agreement to preliminarily treat the
`agreement as confidential.
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`nonresident defendant commits “a tortious act within [Florida]” when he commits an act outside
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`the state that causes injury within Florida).
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`The law of this Circuit has long recognized a qualified right to jurisdictional discovery. See
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`Am. Civil Liberties, Union of Fla. v. City of Sarasota, 859 F.3d 1337, 1341 (11th Cir. 2017). The
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`qualified right is afforded when (1) the movant timely moves for jurisdictional discovery and (2)
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`the information the movant seeks, if it exists, would give rise to jurisdiction. See Posner v. Essex
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`Ins. Co., Ltd., 178 F.3d 1209, 1214 n.7 (11th Cir. 1999) (distinguishing cases referring to qualified
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`right of jurisdictional discovery because in Posner, plaintiff failed to make discovery requests in
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`the eight months between the time the complaint was filed and the time it was dismissed) (citing
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`Eaton v. Dorchester Dev., Inc., 692 F.2d 727, 729-31 (11th Cir. 1982); Gleneagle Ship Mgmt. Co.
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`v. Leondakos, 602 So.2d 1282, 1284 (Fla. 1992)); see also RMS Titanic, Inc. v. Kingsmen Creatives,
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`Ltd., 579 F. App'x 779, 790 (11th Cir. 2014) (“Our case law suggests that federal courts should
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`order limited jurisdictional discovery where the information plaintiff seeks, if it exists, would give
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`rise to jurisdiction.).
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`Thus, courts in this circuit routinely permit limited jurisdictional discovery before ruling
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`on a jurisdictional motion to dismiss. See Happy Tax Franchising, LLC v. Hill, Case No. 19-24539-
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`CIV, 2020 WL 13221241, *1 (S.D. Fla. Jun 24, 2020) (granting leave to conduct jurisdictional
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`discovery prior to deciding motion to dismiss); Kilma v. Carnival Corp., 2008 WL 4559231, at *1
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`(S.D. Fla. Oct. 10, 2008) (permitting jurisdictional discovery prior to ruling on a motion to dismiss)
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`(Moore, J.); Sierra Equity Group, Inc. v. White Oak Equity Partners, LLC, 2008 WL. 1771857, *2
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`(S.D. Fla. Apr. 15, 2008) (“[J]urisdictional discovery will be useful to determine the actual extent
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`of Defendants’ contacts with Florida to determine whether this case can be resolved on its merits.
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`Without factual discovery, the Court would be left to conjecture whether it could exercise
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`jurisdiction over Defendants.”); Eaton, 692 F.2d at 729 (holding it was premature to dismiss a
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`claim for lack of jurisdiction where plaintiffs were not given an opportunity to elicit material
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`through discovery to support a determination on jurisdiction); Blanco Lines, 632 F.2d at 657
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`(reversing a dismissal on jurisdictional grounds because “Plaintiff is not required to rely
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`exclusively upon a defendant’s affidavit for resolution of the jurisdictional issue” where the
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`dismissal was entered before Plaintiff had an adequate opportunity to take jurisdictional
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`discovery).
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`Here, limited jurisdictional discovery – consisting of the requests for production of
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`documents and a single deposition of each of the five Defendants who is challenging jurisdiction,
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`see Comp. Ex. B – may reveal relevant facts, including, among other things:
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`1.
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`Whether Defendants otherwise are engaged in substantial and not isolated activity
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`targeting Florida which may subject them to general jurisdiction in Florida;
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`2.
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`Whether other agreements exist between Defendants and FTX under which
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`Defendants agreed to target actions or submit to jurisdiction in Florida;
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`3.
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`Whether there are any other relevant contacts between Defendants and FTX that
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`may be sufficient to establish general or specific jurisdiction under the long-arm statute.
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`4.
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`Whether Defendants contracted to target their advertising or marketing efforts for
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`FTX’s services and products to the state of Florida in a manner that may subject them to specific
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`jurisdiction in Florida.
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`Plaintiffs should have the opportunity to at least conduct jurisdictional discovery before
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`the Court rules on Defendants’ jurisdictional arguments. Plaintiffs’ request is timely and
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`appropriate considering Defendants’ jurisdictional arguments. See, e.g., Happy Tax Franchising,
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`2020 WL 13221241 at *1 (“The qualified right [to jurisdictional discovery] is afforded when 1)
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`the movant timely moves for jurisdictional discovery and 2) the information the movant seeks if it
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`exists, would give rise to jurisdiction.”).
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`III. CONCLUSION
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`For all the foregoing reasons, Plaintiffs very respectfully request that the Court grant this
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`Expedited Motion and enter an order granting leave for Plaintiffs to: (1) conduct limited
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`jurisdictional discovery in the manner described above within forty-five (45) days of the Court’s
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`order on this Motion; and (2) file an amended complaint with any additional facts revealed by such
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`additional discovery that establish personal jurisdiction over the Defendants within 20 days after
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`the close of such jurisdictional discovery. Any of the FTX Defendants can still raise any and all
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`specific objections (undue burden, etc.) to the discovery that is served, which the Court can decide.
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`S.D. FLA. L.R. 7.1 CERTIFICATION
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`Plaintiffs’ Counsel certify that they have conferred with Defendants’ Counsel on the earliest
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`dates Defendants’ Counsel made available, via Zoom videoconference on April 24, 2023, and
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`again on April 26, 2023, in a good faith effort to resolve the issues raised in this Motion, and report
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`that Defendants oppose the requested relief.
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`Dated: April 26, 2023
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`CASE NO. 1:22-cv-23753-KMM
`Respectfully submitted,
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`By: /s/ Adam Moskowitz
`Adam M. Moskowitz
`Florida Bar No. 984280
`adam@moskowitz-law.com
`Joseph M. Kaye
`Florida Bar No. 117520
`joseph@moskowitz-law.com
`THE MOSKOWITZ LAW FIRM, PLLC
`3250 Mary Street, Suite 202
`Coconut Grove, FL 33133
`Telephone: (305) 740-1423
`By: /s/ David Boies
`David Boies
`(Pro Hac Vice)
`Alex Boies
`(Pro Hac Vice)
`BOIES SCHILLER FLEXNER LLP
`333 Main Street
`Armonk, NY 10504
`Phone: (914) 749–8200
`dboies@bsfllp.com
`By: /s/ Stephen Neal Zack
`Stephen Neal Zack
`Florida Bar No. 145215
`BOIES SCHILLER FLEXNER LLP
`100 SE 2nd St., Suite 2800
`Miami, FL 33131
`Office: 305-539-8400
`szack@bsfllp.com
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`
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`
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`By: /s/Jose M. Ferrer
`Jose Ferrer
`Florida Bar No. 173746
`Michelle Genet Bernstein
`Florida Bar No. 1030736
`MARK MIGDAL HAYDEN LLP
`8 SW 8th Street, Suite 1999
`Miami, FL 33130
`Office: 305-374-0440
`jose@markmigdal.com
`michelle@markmigdal.com
`eservice@markmigdal.com
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`Co-Counsel for Plaintiff and the Class
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`CERTIFICATE OF SERVICE
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`I hereby certify that a true and correct copy of the forgoing was filed on April 26, 2023,
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`via the Court’s CM/ECF system, which will send notification of such filing to all attorneys of
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`record.
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` By: /s/ Adam M. Moskowitz__
` ADAM M. MOSKOWITZ
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`13
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