Court: District Court, M.D. Florida; March 4, 2019; Federal District Court
Plaintiffs, including Diamond Resorts International and its affiliates, are suing Defendants, attorney Austin N. Aaronson and the Aaronson Law Firm, for false advertising related to their solicitation of Diamond's timeshare members. The lawsuit claims that misleading advertisements on the Firm's website falsely suggest that members can escape their financial obligations under Timeshare Contracts, which has led to members ceasing payments and initiating unfounded arbitration claims against Diamond. The Court denies Defendants' motion for summary judgment, allowing the case to proceed.
The advertisements in question are featured on the Firm's website, including a prominent one from August 2015 to August 2016, which describes timeshare ownership as entrapment and suggests that the Firm can leverage alleged breaches of fiduciary duty by developers to help clients escape their contracts. The ad emphasizes the Firm's legal experience and invites potential clients to consult for free, implying that legal issues are manageable.
In 2016, the Aaronson Firm emphasized the legal vulnerabilities of timeshare developers and the importance of hiring experienced counsel, offering over forty years of combined legal experience and a willingness to pursue lawsuits to facilitate timeshare cancellations. They encouraged potential clients to contact them for a free consultation, asserting that legal challenges could be overcome. By 2017 and 2018, the firm updated its messaging to highlight over eighty years of combined experience and outlined three methods for potential clients to reach out for assistance. Additionally, the firm addressed common issues related to timeshare contracts, including fraudulent signatures and the developers' conflicts of interest, stressing the need for a licensed attorney to effectively leverage these vulnerabilities. The firm's website also featured a diagram detailing their process for assisting clients in exiting timeshare contracts.
The Firm's website features video advertisements where a spokesperson in a gray suit presents information about the timeshare industry, reflecting the Defendants' perspective. These advertisements include general views on industry practices and specific references to Diamond Resorts International, highlighting its business model. The article "Timeshare Traps" from May 5, 2015, criticizes Diamond for its profit-driven strategies, such as acquiring existing resorts rather than developing new ones. It claims Diamond unlawfully revokes deeds from owners and implements a points system that limits access to accommodations, thereby unfairly impacting existing owners. It warns potential customers of the risk of being denied access due to insufficient points and invites those dissatisfied with their Diamond timeshare to inquire about legal options for contract rescission at no charge. Additionally, a targeted advertisement outlines the profitability of timeshares over traditional hotel operations, explaining reasons such as predictable cash flow and the potential for overbooking without legal consequences. It also encourages individuals who feel misled in their timeshare purchases to seek assistance.
A conflict of interest arises when an individual's obligation to act in the best interest of another is hindered by external factors, often financial. In the context of Diamond Resorts International (DRI), this conflict is prevalent, particularly regarding timeshare management. Timeshare owners possess certain rights, including voting rights for the election of board members who oversee the management of the timeshare properties. Typically, this includes appointing a management company; however, DRI often acts as the management company despite not holding a majority ownership interest in the resorts.
DRI justifies its control through several means outlined in its recent SEC annual report. Each DRI-managed resort operates under a homeowners association (HOA) led by a board elected by interval owners, which may include representatives from DRI as the developer. DRI claims voting rights based on its ownership of intervals, control over associated collections, and its developer status. The HOA board then hires a management company, which, in DRI's case, is DRI itself. Additionally, DRI functions as an HOA for two resorts in St. Maarten, managing maintenance fees and operational costs. The rationale provided by DRI is criticized as largely irrelevant or nonsensical.
Directors of the HOA are elected by interval owners, which is accurate; however, the statement suggests that Diamond, the managing company, is entitled to voting rights regarding these directors. This entitlement is limited to instances where Diamond holds title to intervals in the resort, and it is indicated that Diamond does not own a majority of these intervals in any managed resort. The disclosure cites three reasons for Diamond's control over the resorts: (i) ownership of intervals, which is disputed; (ii) control over the Collections that hold intervals and management company influence, allowing Diamond to control the board of directors; and (iii) its status as the developer, which allegedly grants perpetual control over the board. The practice described involves Diamond utilizing proxy proposals to secure votes for its insiders on the board, even with minimal ownership. This creates a cycle where owners lack communication with one another, hindering opposition to Diamond's control.
Additionally, 258 Diamond timeshare owners have engaged the Defendants to cancel their Timeshare Contracts. The Defendants attract clients through various means, including their website and referrals. A significant portion of these clients has delinquent accounts, with total delinquencies reaching approximately $4.58 million as of July 31, 2018. The Defendants have initiated over thirty arbitrations against Diamond for claims related to breach of fiduciary duty and mismanagement of fees, but these claims have consistently failed, often lacking good faith and resulting in rulings in favor of Diamond on counterclaims for unpaid debts.
The Court presents the experiences of two Diamond Clients, the Hardistys and the Feldmans, to illustrate the Defendants' representation approach.
For the Hardistys, Ms. Hardisty purchased Diamond timeshare points in July 2015 and later acquired more in November, but soon regretted her decision due to affordability concerns and feelings of being misled by Diamond. After searching online for ways to exit the Timeshare Contract, she discovered Mr. Aaronson's firm through a video on its website that mirrored promotional materials. After engaging via live chat, the Hardistys retained Mr. Aaronson, who subsequently sent a demand letter and initiated arbitration against Diamond. However, Ms. Hardisty felt that the claims, which included breach of fiduciary duty and fraud, did not align with her experiences and included inaccuracies. She did not understand some claims and found them difficult to prove, contrary to the Defendants' marketing. Mr. Aaronson advised her she could likely stop payments to Diamond, which she interpreted as permission, leading her to cease payments. He later terminated his representation before the arbitration hearing.
In the case of the Feldmans, they purchased Diamond timeshare points in 2014 and sought to terminate their contract after a maintenance fee increase in May 2015. Mr. Feldman found Mr. Aaronson online, watched a video on the firm’s website, and found no malpractice issues upon further research. He retained Mr. Aaronson based on a positive impression, despite no guarantees about the outcome. Early in their engagement, Mr. Feldman expressed reluctance to continue payments, to which Mr. Aaronson advised against further payments on the promissory note. Mr. Aaronson then sent a demand letter and filed a statement of claim for the Feldmans.
Mr. Aaronson's claims were nearly identical to those he made for the Hardistys. Mr. Feldman expressed confusion about certain statements and found others inaccurate. During an arbitration against Diamond, Mr. Feldman testified about misrepresentations by Diamond's sales staff, but the Feldmans ultimately lost the case, and Diamond counter-sued for unpaid contract amounts. Mr. Feldman believed Aaronson's claims concerning maintenance fees, breaches of fiduciary duty, and conflicts of interest were not straightforward to prove. They hired a different attorney to resolve their debt to Diamond.
Diamond then initiated a lawsuit, asserting that the Subject Advertisements and the defendants' representation of Diamond Clients harmed its reputation and sales. Following the dismissal of certain claims, Diamond amended its complaint to include allegations of false advertising under the Lanham Act, tortious interference, trade libel, and violations of Florida's Deceptive and Unfair Trade Practices Act (FDUTPA). The defendants subsequently moved for summary judgment, arguing that the advertisements and Mr. Aaronson's actions were lawful.
Summary judgment is warranted only if there is no genuine dispute over material facts, and the movant is entitled to judgment as a matter of law. The movant must demonstrate the absence of material fact issues and provide credible evidence to support their motion. If the nonmovant bears the burden of proof, the movant can either show a lack of supporting evidence or provide affirmative evidence indicating the nonmovant's inability to prove their case at trial. The burden then shifts to the nonmovant to present affirmative evidence showing a genuine issue of material fact exists.
A factual dispute is deemed genuine if reasonable evidence exists for a jury to favor the nonmoving party. Courts must assess evidence while favoring the nonmovant, crediting their version when conflicts arise, but can deny jury consideration if nonmovant's inferences are implausible or blatantly contradicted by the record. In the case of Porter v. Ray, Defendants seek summary judgment on four counts. For Count I, they argue that Diamond lacks "statutory standing" under the Lanham Act and cannot substantiate a false advertising claim. For Counts II-IV, Defendants assert the Florida Litigation Privilege prohibits Diamond from using prior arbitration statements to support these claims. Diamond counters that genuine material facts exist which preclude summary judgment. The court initially addresses the Lanham Act claim, where Defendants argue Diamond lacks standing and fails to demonstrate that the advertisements in question are false or misleading, have deceived the target audience, or materially affected consumer decisions. However, the court finds material factual issues regarding the Lanham Act claim, warranting denial of summary judgment. Under the Lanham Act, liability arises for those who misrepresent goods or services in commerce, provided the plaintiff's interests fall within the Act's protective zone, requiring proof of injury to commercial interests due to the defendant’s misrepresentations.
To demonstrate that the defendant's misrepresentations caused injury, the plaintiff must establish five elements: (1) the statements were false or misleading; (2) the statements deceived or had the potential to deceive consumers; (3) the deception materially affected consumer purchasing decisions; (4) the misrepresented service impacted interstate commerce; and (5) the plaintiff has suffered or is likely to suffer injury from the false or misleading statements. The Court first evaluates whether Diamond's claimed injuries—reputational damage and lost sales—fall within the "zone of interests" of the Lanham Act, which permits suits by anyone who believes they are likely to be harmed by false advertising. The Lanham Act protects against injuries to commercial interests, including reputation and sales.
Defendants argue that Diamond's lack of pursuit for reputational damages excludes this harm from the zone of interests. However, Diamond asserts that the false allegations in the advertisements indicate reputational harm, regardless of whether it seeks monetary damages. The Court agrees that a reasonable jury could conclude that the false statements harmed Diamond's reputation.
Defendants also claim that Diamond’s monetary losses from unpaid promissory notes and maintenance fees do not qualify as lost sales under the Lanham Act, as they pertain to "accounts receivables." In contrast, Diamond argues that these losses, tied to delinquent timeshare accounts, reflect a loss of customers and thus constitute lost sales. Diamond provided expert testimony indicating these losses exceed $4.5 million. The Court finds no authority supporting the defendants' position that such losses fall outside the Lanham Act's protections. Accordingly, the Court concludes that Diamond's injuries related to reputational damage and lost sales from unpaid obligations place it within the Lanham Act's zone of interests.
The first element of a false advertising claim requires that the advertisement be either literally false or literally true but misleading. Courts evaluate whether an advertisement is false or misleading by analyzing the full context and entirety of the statements made. While statements of opinion are generally not actionable, they can become actionable if they imply a factual basis.
The Subject Advertisements from the Firm Website, including text from the Homepage, videos, and articles, assert that timeshare developers are legally vulnerable due to breaches of fiduciary duties and conflicts of interest. Specific claims made against Diamond Resorts accuse it of illegal actions, such as attempting to unilaterally revoke deeds and managing a points system without authority. The advertisements suggest that individuals can easily exit their Timeshare Contracts due to these vulnerabilities.
Defendants argue that some of the advertisements are accurate while others are merely opinions. However, the Court finds that there are genuine issues of material fact regarding whether the advertisements are "literally false" or "literally true but misleading," especially given the evidence contradicting the Defendants' claims about the obviousness and provability of vulnerabilities in Timeshare Contracts.
Defendants have repeatedly failed to substantiate their claims against Diamond, having lost over thirty cases concerning specific "easily provable" claims. Mr. Aaronson was unable to adequately explain how he could prove these claims, and none of his methods were recognized by judges or arbitrators. The Court finds that while Defendants argue certain statements in the Subject Advertisements are mere opinions, a full context review reveals unequivocal assertions challenging the legality of Diamond's actions, including direct invitations for readers to seek legal counsel. These advertisements, authored by a lawyer from a firm specializing in timeshare cancellations, accuse Diamond and other developers of fraud and other unlawful activities. They present themselves as capable legal representatives, asserting the existence of straightforward claims against timeshare developers and encouraging immediate contact for consultations. The Court concludes that genuine issues of material fact remain regarding the misleading nature of the advertisements. Furthermore, to succeed in a false advertising claim, plaintiffs must demonstrate that the statements were either deceptive or had the potential to deceive consumers, with the classification of the advertisement influencing the burden of proof regarding consumer deception.
An advertisement deemed literally false does not require evidence of consumer deception, while a merely misleading advertisement does necessitate such evidence, including consumer surveys, market research, or expert testimony. Evidence from Dr. Stewart’s survey indicated significant consumer misperceptions about the services of the Aaronson websites, which were found to mislead viewers, particularly timeshare owners. The survey revealed statistically significant differences in responses between those who viewed the Aaronson websites and a control group, indicating that the websites led consumers to believe that Aaronson could assist in canceling timeshare contracts and promoted negative perceptions of timeshare companies. The results suggested that consumers were likely to act on the misleading information regarding their ability to cease payments on timeshare properties and indicated a tendency to engage the law firm if they perceived legal vulnerabilities in their timeshare developers. Defendants contest the validity of the Stewart Survey Report's design and findings, arguing that Diamond has not substantiated its claims of consumer deception.
Defendants contend that Dr. Stewart's survey should focus solely on "timeshare owners who want to get out" rather than the broader category of "adult consumers in the U.S. who own or have ever owned a timeshare." However, the Subject Advertisements and Firm Website are widely accessible online, potentially informing viewers about cancellation options they were previously unaware of. Consequently, the Court finds no merit in discrediting the Stewart Survey Report based on the defined population.
Defendants also challenge the report's findings on deception, arguing that none of the identified deception rates surpassed their 20% threshold. They selectively highlight certain questions to support their claim of a lack of deception. However, this argument is flawed; they overlook numerous cases that recognize lower rates as significant indicators of deception. Specifically, Dr. Stewart, the sole consumer behavior expert, asserts that some results, while below 20%, are still statistically significant, and Defendants miscalculated other figures that actually exceed 20%. Without an expert to counter Dr. Stewart's analysis, the Court remains unconvinced by Defendants' claims. As a result, sufficient evidence of deception has been presented, precluding the granting of summary judgment.
Additionally, to prove false advertising, the plaintiff must demonstrate that the deception likely influences consumer purchasing decisions, a requirement supported by established legal precedent.
Establishing materiality is essential even if an advertisement is deemed false. A plaintiff can meet this requirement by demonstrating that defendants misrepresented the product's inherent qualities. Defendants argue that the absence of direct evidence showing that their Diamond Clients ceased payments or initiated arbitration solely due to the Subject Advertisements prevents the plaintiff from proving materiality. However, circumstantial evidence exists indicating that the Subject Advertisements may have influenced purchasing decisions, allowing the materiality element to survive summary judgment.
For instance, Diamond's damages expert provided a timeline correlating when Diamond members retained defendants and when they stopped payments on their Timeshare Contracts. Additionally, many clients discovered defendants through the Firm Website featuring the Subject Advertisements. Hence, a jury could conclude that these advertisements affected decisions to halt payments or pursue arbitration.
Evidence also suggests that the Subject Advertisements misrepresented the quality of Diamond's services and legality, creating genuine issues regarding their falsity and misleading nature. The Stewart Survey Report indicates that the advertisements misled many consumers about the services offered and could incite consumer action based on this misinformation. If a jury finds that the advertisements misrepresented Diamond's timeshares and business practices, the materiality requirement may be satisfied.
The court identifies genuine issues of material fact, allowing a reasonable jury to determine if the Subject Advertisements deceived viewers and influenced their timeshare purchasing decisions, thus rejecting the defendants' summary judgment argument. Lastly, under the Lanham Act, to prove causation for the damages claimed, the plaintiff must show that the false or misleading statements deceived or had the potential to deceive consumers.
To establish a claim under the Lanham Act, a plaintiff must demonstrate that the defendant’s false advertising caused material harm to the plaintiff's economic or reputational interests. Key elements include: 1) the deception materially influenced consumer purchasing decisions; 2) the misrepresented service impacts interstate commerce; and 3) the plaintiff has suffered, or will likely suffer, injury due to the misleading statements. In this case, genuine issues of material fact exist regarding the veracity of the Subject Advertisements and their effect on consumer decisions, preventing a summary judgment on whether a Lanham Act violation occurred.
The defendants argue that the advertisements do not explicitly instruct viewers to cease payments to the plaintiff or pursue legal actions, and that there is no direct evidence showing that their clients acted solely based on the advertisements. However, circumstantial evidence suggests a reasonable jury could infer causation. This includes the Subject Advertisements' presence on the Firm Website, testimony from clients who viewed the site, significant viewership data from Google Analytics, and evidence of clients stopping payments to the plaintiff shortly before or after hiring the defendants. Additionally, survey results indicate that the advertisements likely influenced viewers to hire the defendants and cease payments on their contracts. The defendants fail to provide legal support for their claims that the advertisements must explicitly instruct consumers to withhold trade or be the sole cause of consumer actions for the plaintiff to succeed in a false advertising claim.
Causation in false advertising claims requires only that the false advertising proximately causes the claimed injury, without needing to be the sole or predominant cause. Diamond has presented circumstantial evidence creating genuine issues of material fact regarding causation, thereby preventing summary judgment.
Regarding Diamond's three Florida law claims after the Lanham Act claim survived summary judgment, defendants argue for summary judgment based on Florida's litigation privilege and Diamond's insufficient evidence for each claim. Florida's litigation privilege grants absolute immunity to statements or actions made in judicial or quasi-judicial proceedings that are relevant to the case. However, this privilege does not apply to all communications related to litigation; each must be assessed for its connection to the judicial proceeding. Florida courts have limited the application of this privilege to conduct that is directly connected to or preliminary to judicial proceedings, specifically pre-suit communications necessary for the lawsuit.
Defendants claim that Florida's litigation privilege precludes Diamond's use of statements or actions from earlier arbitration proceedings as evidence for its Florida law claims. While defendants did not specify which acts or statements the privilege applies to in their initial motion, they later referenced several specific arbitration-related documents and statements they contend are protected by the privilege.
Ms. Hardisty and Dr. Feldman's depositions include relevant statements regarding their representation by Mr. Aaronson and instructions about payments to Diamond in their arbitration proceedings. The Court determined that the Defendants have not sufficiently established the applicability of the litigation privilege to the statements and acts in question. Two main issues hinder the application of this privilege. First, Defendants failed to specify which statements or acts were protected by the litigation privilege in their initial Motion, instead introducing this information for the first time in their reply, which is procedurally improper. New factual arguments cannot be presented in a reply memorandum to support a summary judgment motion. Consequently, Defendants did not provide adequate grounds for asserting the privilege, failing to allow Diamond the opportunity to contest its application.
Second, even if the Defendants had included a list of statements in their Motion, it remains unclear whether all the statements qualify for the litigation privilege. While communications made during arbitration proceedings generally fall under the privilege, there is a factual dispute regarding Mr. Aaronson’s statements about continuing payments to Diamond and their connection to the arbitration proceedings. The Court emphasized that mere assertions of connection to arbitration are insufficient for establishing absolute immunity. Florida courts have shown reluctance to broadly extend the litigation privilege to related communications. Therefore, the Court denies the Defendants’ broad claim to Florida's litigation privilege regarding Diamond's claims based on their conduct during representation, asserting that the privilege’s applicability will be assessed at trial based on the specific context of the statements. The Court then addresses the merits of Diamond's claim regarding tortious interference with a contractual relationship.
To establish a tortious interference claim in Florida, a plaintiff must demonstrate five elements: (1) the existence of a contract; (2) the defendant's knowledge of the contract; (3) the defendant's intentional procurement of a breach; (4) the absence of justification for the breach; and (5) resulting damages to the plaintiff. Additionally, the defendant must be a third party, not a party to the contract or an agent. Generally, an agent is not liable for tortious interference if acting in the principal's best interest, but this privilege may be revoked if the agent acts with ulterior motives and not in the principal's interest. A qualified privilege is not negated by evidence of malice unless malice is the sole motive for interference. In the case at hand, Diamond's tortious interference claim is grounded in the Subject Advertisements and Mr. Aaronson's advice to his clients to stop payments to Diamond. There are genuine disputes regarding whether the advertisements led to the cessation of payments. While Mr. Aaronson claims privilege in advising clients like the Hardistys to stop payments, the legality of this advice is questionable due to subsequent litigation and his knowledge of counterclaims against other clients for delinquent payments.
Mr. Aaronson did not clarify his reasons for advising the Feldmans to stop payments, failing to demonstrate that this advice was justified or privileged. The Court identifies genuine factual disputes regarding his motivations, preventing the granting of summary judgment on Diamond's tortious interference claim linked to his advice. The question of qualified privilege, influenced by these factual disputes, is to be decided by a jury.
Regarding Diamond's trade libel claim under Florida law, the plaintiff must establish five elements, including the existence of a falsehood communicated to a third party that materially induces others not to deal with the plaintiff, resulting in special damages. The Defendants contest that there is insufficient evidence linking the Subject Advertisements to Diamond's arbitration costs and fees, asserting that the Diamond Clients ceased payments for their own reasons. Summary judgment is denied, as significant factual issues remain concerning whether the Subject Advertisements caused the clients to stop payments and pursue arbitration.
For Diamond's claim under the Florida Deceptive and Unfair Trade Practices Act (FDUTPA), three elements must be satisfied: a deceptive act, causation, and actual damages. Actual damages do not encompass consequential losses or future profits, but past lost profits qualify. The Defendants challenge the existence of actual damages and causation in Diamond's FDUTPA claim. However, the Court determines that Diamond's claim holds merit and survives the Defendants' motion.
Diamond claims actual damages related to unpaid promissory notes, maintenance fees, and other fees associated with timeshare ownership, which are recoverable under the Florida Deceptive and Unfair Trade Practices Act (FDUTPA) rather than speculative future profits. The Court acknowledges ongoing genuine issues of material fact regarding causation. The success of Diamond’s FDUTPA claim is linked to a federal Lanham Act claim for false advertising. Consequently, the Court denies Defendants' summary judgment request for both claims, allowing the matter to proceed to trial on all counts. The document notes that the facts presented are based on Plaintiff's perspective and do not necessarily reflect actual case facts. Additionally, it addresses the concept of "statutory standing," clarifying that the inquiry should focus on whether the advertisements in question are false or misleading before assessing causation. Defendants' arguments fail to adequately address the established elements of a false advertising claim, leading the Court to limit its considerations to the specific arguments made by Defendants.
Defendants claim that Diamond has forfeited its right to seek damages for lost sales and market share by not permitting discovery necessary for the Defendants to contest these claims. Diamond contends that it has provided essential financial documentation. The Court rules that Diamond has not abandoned its claims, supported by evidence from its damages expert. Defendants submitted arbitration awards as evidence but argued they should be deemed inadmissible hearsay. The Court disagrees, noting that the awards may be admissible under exceptions to hearsay rules, specifically relating to Mr. Aaronson's understanding of his claims. Defendants lacked clarity on how Mr. Aaronson would substantiate his claims and did not challenge the Stewart Survey Report with a Daubert motion or provide their own expert testimony on consumer behavior. Their only argument against the report is that Mr. Aaronson does not target timeshare buyers, yet the relevant materials do not assess future purchasing intentions. Dr. Stewart maintains that the population definition in the survey aligns with advertising media scheduling. Defendants' claim to "net out the noise" in their deception rates is criticized by Dr. Stewart as applicable only to specific questions. Additionally, Defendants assert that Diamond failed to provide raw data for open-ended survey responses and that one question was leading, but Diamond counters that it produced this data and the question is not leading. The Court finds these challenges insufficient to alter its conclusion that the Stewart Survey Report is adequate to prevent summary judgment. Evidence of deception is necessary only when statements are literally true but potentially misleading.
Flaws in the Stewart Survey Report do not grant Defendants summary judgment on the false advertisement claim, as a reasonable jury could determine that the Subject Advertisements are literally false, negating the need for Diamond to demonstrate deception. Defendants’ arguments regarding proximate causation overlook Diamond's claims of reputational harm; if a jury finds that the Subject Advertisements harmed Diamond's reputation, proximate causation is evident. Reputation injury is directly linked to the audience's belief in disparaging statements made by the defendant. If the jury found that the advertisements included known falsehoods, proximate causation would also likely be established. Defendants assert that Diamond must demonstrate marketplace competition due to its abandonment of a monetary damages claim for reputational harm; however, Diamond maintains its claim of reputational harm despite not seeking monetary compensation. The Court previously dismissed this argument, and advertising is not related to arbitration proceedings, meaning Florida's litigation privilege applies only to claims based on Defendants’ behavior towards Diamond Clients. Litigation privilege is an affirmative defense, placing the burden on Defendants to prove its applicability. Defendants' objections to arbitration awards as inadmissible hearsay were rejected by the Court. Florida courts treat the privilege to interfere as an affirmative defense for tortious interference claims, applying a burden-shifting framework in such instances.
Once a plaintiff establishes a prima facie case of tortious interference with a business relationship, the defendant must demonstrate that their interference was lawful. Diamond seeks injunctive relief for its Florida Deceptive and Unfair Trade Practices Act (FDUTPA) claim. The defendants introduced new arguments in their reply, including the Single Publication/Single Action Rule, asserting that if any of Diamond's Florida law claims fail, they all fail, and that Mr. Aaronson should receive summary judgment on damages due to lack of evidence presented by Diamond. However, the court did not consider these arguments as they were not properly raised, adhering to the principle that district courts typically do not entertain issues introduced for the first time in a reply brief.
