When Consumer-Protection Claims “Sound in Fraud”: Eleventh Circuit Requires Rule 9(b) Particularity for FDUTPA Allegations

1. Introduction

In Alin Pop v. LuliFama.com LLC, No. 24-11048 (11th Cir. Aug. 1, 2025), the Eleventh Circuit confronted a growing phenomenon—the use of social-media influencers to promote consumer products without adequate disclosure of compensation. Plaintiff Alin Pop alleged that such undisclosed paid endorsements violated the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”) and sought class-wide relief exceeding $10 million. The district court dismissed the action with prejudice, holding that:

Pop’s FDUTPA theory sounded in fraud and was therefore subject to Federal Rule of Civil Procedure 9(b)’s heightened pleading requirements; and
the complaint failed to plead the “who, what, when, where, and how” with particularity.

On appeal, Pop asked the Eleventh Circuit to (i) exempt FDUTPA claims from Rule 9(b), (ii) find his allegations plausible under ordinary Rule 8 standards, or (iii) at minimum remand with leave to amend. The Court rejected each request and established a new, explicit precedent: any FDUTPA claim that sounds in fraud must satisfy Rule 9(b).

2. Summary of the Judgment

The panel (Branch, Rosenbaum & Kidd, JJ.) unanimously affirmed, delivering four principal holdings:

Rule 9(b) applies to FDUTPA claims “when those claims sound in fraud,” aligning Florida consumer-protection actions with the pleading standards already applicable to unjust-enrichment, negligent-misrepresentation, and civil-theft claims alleging fraudulent conduct.
Pop’s complaint did sound in fraud: it alleged intentional nondisclosure of paid endorsements, plaintiff reliance, and damages—tracking the elements of common-law fraud despite labeling the theory as “deceptive” or “unfair” conduct.
The complaint failed Rule 9(b): it did not identify specific posts, dates, influencer defendants, or causal links to Pop’s purchase, and impermissibly lumped all defendants together.
Dismissal with prejudice was proper because Pop never filed a proper motion to amend; an embedded one-sentence request inside an opposition brief is insufficient. The Court limited its earlier “shotgun pleading” repleader exception (Wagner v. Daewoo/First Horizon) to non-merits Rule 12(e) scenarios, not to substantive Rule 9(b) failures.

3. Analysis

3.1 Precedents Cited and Their Influence

Wilding v. DNC Services Corp., 941 F.3d 1116 (11th Cir. 2019)
Confirmed that any claim “sounding in fraud” must satisfy Rule 9(b) regardless of label. The panel invoked this principle as the analytical starting point.
Young v. Grand Canyon Univ., 57 F.4th 861 (11th Cir. 2023)
Applied Rule 9(b) to Arizona consumer-fraud statute; used to rebut Pop’s argument that remedial consumer statutes are immune from heightened pleading.
Lamm v. State Street Bank & Trust, 749 F.3d 938 (11th Cir. 2014)
Held negligent-misrepresentation claims sounding in fraud trigger Rule 9(b). Demonstrated the Court’s willingness to extend 9(b) beyond classic fraud causes of action.
Omnipol v. Multinational Defense Servs., 32 F.4th 1298 (11th Cir. 2022)
Re-affirmed that unjust-enrichment and civil-theft claims sounding in fraud fall under Rule 9(b), reinforcing the panel’s reasoning.
Wagner v. Daewoo, 314 F.3d 541 (11th Cir. 2002) & Wagner v. First Horizon Pharm. Corp., 464 F.3d 1273 (11th Cir. 2006)
Recognized limited “shotgun pleading” repleader exception. The panel distinguished these cases, clarifying that Rule 9(b) dismissals are merits-based and do not automatically warrant sua sponte leave to amend.
Ashcroft v. Iqbal, 556 U.S. 662 (2009) & Bell Atlantic v. Twombly, 550 U.S. 544 (2007)
Provided core plausibility framework; cited to reaffirm that Rule 8 still requires more than “an unadorned the-defendant-unlawfully-harmed-me accusation.”

3.2 Legal Reasoning

The Court proceeded in three logical steps:

Textual Anchor & Precedent Harmony
Rule 9(b) applies “[i]n alleging fraud.” The Court interpreted “alleging” functionally, not formalistically—asking whether the factual theory matches fraud’s core elements (misrepresentation or concealment of material fact, intent, reliance, damages).
Fraud-Sounding Diagnosis
Pop’s own allegations stated that influencers “pretend[ed] they are disinterested consumers,” concealed compensation, and induced him to pay a premium. These map directly onto fraud’s paradigm, triggering 9(b).
Pleading Deficiency & Denial of Repleader
Applying Brooks/American Dental, the Court found Pop failed every particularity prong: who posted, what exactly was said/shown, when, how Pop relied, and how the price premium connected to loss. Because Pop never filed a stand-alone Rule 15 motion, dismissal with prejudice was within the district court’s discretion. The panel limited the First Horizon repleader mandate to shotgun cases where facts exist but are disorganized—not where facts are simply missing.

3.3 Potential Impact of the Judgment

The decision meaningfully expands Rule 9(b)’s reach in the Eleventh Circuit:

FDUTPA Litigation – Plaintiffs alleging misrepresentation-based unfair or deceptive practices must now plead with particularity. Generic references to “false advertising,” “undisclosed fees,” or “bait-and-switch” will be insufficient unless the complaint details the specific misstatements, actors, timing, and causal nexus.
Influencer Marketing Cases – The Court provides a blueprint for future plaintiffs: archive actual posts, capture dates, identify handles, and plead exposure/click-through chronology. Defendants may leverage the ruling to seek early dismissal where complaints rely on generalized “influencer culture” allegations.
Procedural Strategy – Counsel must file a discrete Rule 15(a)(2) motion when seeking leave to amend post-dismissal. Embedded hedge language is inadequate in the Eleventh Circuit.
Shotgun Pleading Doctrine Clarified – The judgment confines the automatic repleader remedy to Rule 12(e) disorganization cases, not to substantive insufficiencies under Rule 9(b). This may reduce reflexive grants of leave to amend in federal consumer-fraud suits.
Inter-Circuit Persuasion – The opinion aligns with the Seventh and Ninth Circuits (e.g., Kahn, Kearns), strengthening a national consensus that state consumer-fraud statutes do not escape Rule 9(b) when fraud-like allegations are central.

4. Complex Concepts Simplified

FDUTPA – A Florida statute prohibiting “unfair or deceptive acts or practices” in commerce. Typically requires (i) deceptive act/unfair practice; (ii) causation; (iii) actual damages.
Rule 9(b) Particularity – A heightened federal pleading rule for “alleging fraud,” requiring plaintiffs to specify the “who, what, when, where, and how” of the misconduct so defendants have precise notice and courts can weed out baseless fraud claims.
“Sound in Fraud” – A claim need not be labelled “fraud” to trigger Rule 9(b). If the factual theory alleges intentional misrepresentation or omission, reliance, and injury, the claim “sounds in fraud.”
Shotgun Pleading – Complaint defect where allegations are so poorly organized or sweeping that neither the court nor defendants can ascertain which facts support which counts. Usually remedied by a Rule 12(e) order for a more definite statement.
Leave to Amend – Under Rule 15(a)(2), courts “should freely” grant leave, but only when properly requested (separate motion or explicit prayer). A closing sentence inside an opposition brief is not a valid request.

5. Conclusion

Alin Pop v. LuliFama.com LLC cements a clear procedural rule: if your FDUTPA (or comparable consumer-protection) claim walks and quacks like fraud, it must be pled like fraud—precisely, specifically, and with documentary anchors. The ruling enhances predictability for courts and litigants while signaling that generalized grievances about influencer marketing or price premiums will not survive the motion-to-dismiss stage absent particularized facts. Practitioners should preserve social-media evidence early, map reliance chains meticulously, and file formal motions when amendment is desired. The Eleventh Circuit’s decision thus tightens the nexus between substantive consumer-protection law and federal procedural rigor, promoting both doctrinal clarity and judicial efficiency.