ADT’s lawsuit against Vivint for stealing accounts and disparagement October 5, 2021

KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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ADT’s lawsuit against Vivint for stealing accounts and disparagement
October 5, 2021
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ADT’s lawsuit against Vivint for stealing accounts and disparagement
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          For those interested in watching the battle of titans here’s the latest turn of events in the lawsuit filed by ADT against Vivint for stealing accounts and disparaging comments.  ADT started the action and Vivint moved to dismiss the complaint.  Lot’s of allegations, discussion and analysis in the Judge’s decision, which denied the motion to dismiss, all but assuring lots more activity to report on as this case progresses.  There’s a good discussion on claims for trade slander/commercial disparagement  and tortious interference with advantageous business relationships.  Please email me your comments and questions.
    By the way, the motion to dismiss is a motion for “failure to state a cause of action” which means that Vivint claimed ADT lawyers weren’t smart enough to plead all the essential elements of a cause of action.  If a claim can be discerned from the allegations the court will deny the motion, which it did here.  That doesn’t mean that the court accepted ADT’s allegations as true or that ADT has established enough to win this case; only that the allegations are sufficient to require Vivint to answer the complaint.
    Here’s the case in its entirety; I apologize for not having the patience to read and dissect it.
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 20-23391-Civ-COOKE/GOODMAN
ADT LLC, et al.,
Plaintiffs,
vs.
VIVINT SMART HOME, INC., et al.,
Defendants.
____________________________________/
ORDER DENYING MOTION TO DISMISS
THIS MATTER is before the Court on the Motion to Dismiss filed by Defendants
Vivint Smart Home, Inc. f/k/a Mosaic Acquisition Corp. and Legacy Vivint Smart Home,
Inc. f/k/a Vivint Smart Home, Inc. (ECF No. 24) (the “Motion”), filed October 27, 2020.
Plaintiffs ADT, LLC and The ADT Security Corporation (“Plaintiffs”) filed their response in
opposition to the Motion on November 10, 2020. ECF No. 28. Defendants Vivint Smart
Home, Inc. f/k/a Mosaic Acquisition Corp. and Legacy Vivint Smart Home, Inc. f/k/a
Vivint Smart Home, Inc. (“Defendants”) filed their reply in support of the Motion on
November 17, 2020. ECF No. 29.
Having reviewed the Motion, the briefing related thereto, the record, and the relevant
legal authorities, the Court finds, for the reasons discussed below, that the Motion should be
denied.
Background
Plaintiffs filed their initial complaint in this action on August 14, 2020. ECF No. 1.
Then, on October 13, 2020, Plaintiffs filed a First Amended Complaint which is the operative
pleading in this case. ECF No. 22. In sum, the crux of Plaintiffs’ allegations are as follows:
This case is about Vivint’s false and misleading sales practices on the doorsteps
and in the homes of hundreds—if not thousands—of ADT customers across
the country. Through well-rehearsed sales tactics, Vivint’s sales representatives
have misled scores of ADT customers into believing, among other things: (1)
that the Vivint agent is there to simply “update” or “upgrade” the ADT
customer’s equipment, when in reality he or she is switching out the ADT
system for Vivint; (2) that ADT has been bought out or is going out of business
Case 1:20-cv-23391-MGC Document 71 Entered on FLSD Docket 09/30/2021 Page 1 of 11
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and that Vivint is taking over ADT accounts; and (3) that Vivint is a
subcontractor, installer or is otherwise affiliated with or acting on behalf of
ADT. These affiliation misrepresentations allow Vivint to freeride on the
goodwill of ADT, damage ADT’s name, and lead ADT’s customers to do
business with Vivint under false pretenses, typically resulting in the ADT
customer becoming bound into a multi-year contract with Vivint valued in the
thousands of dollars that is impossible for the customer to extricate him or
herself from once the customer has finally become aware of Vivint’s deception.
These practices violate Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a),
and the related common law of unfair competition. ADT seeks damages to
remedy its loss of numerous customers (some known, some unknown) and the
disruption of thousands of others since December 20, 2017; ADT’s injuries to
its goodwill and reputation; ADT’s lost royalties from Vivint’s unauthorized
use of the ADT brand; Vivint’s profits from its ill-gotten gains, ADT’s
attorneys’ fees; and punitive damages to punish and deter Vivint from
continuing to engage in its intentional conduct.
ECF No 22, First Am. Compl. at ¶ 1. Plaintiffs’ First Amended Complaint asserts the
following causes of action: 1) Unfair competition in violation of the Lanham Act, 15 U.S.C.
§ 1125(a)(1)(A); 2) Common law unfair competition; 3) Trade slander/commercial
disparagement; and 4) Tortious interference with advantageous business relationships.
Legal Standard
Federal Rule of Civil Procedure 8(a) requires that a complaint “contain. . . a short and
plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). While this standard “does not require ‘detailed factual allegations,’ . . . it demands
more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The
standard requires the complaint to “give the defendant fair notice of what the plaintiff’s claim
is and the grounds upon which it rests.” Swierkiewicz v. Sorema N.A., 543 U.S. 506, 512 (2002)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). To provide the “grounds” for “entitle[ment]
to relief,” the complaint must contain “more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678
(citing Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the
Case 1:20-cv-23391-MGC Document 71 Entered on FLSD Docket 09/30/2021 Page 2 of 11
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defendant is liable for the misconduct alleged.” Id. When considering a motion to dismiss, the
court must accept the allegations in the complaint as true and construe them in the light most
favorable to the plaintiff. Duty Free Ams., Inc. v. Estee Lauder Cos., 797 F. 3d 1248, 1262 (11th
Cir. 2015) (citing Murphy v. F.D.I.C., 208 F.3d 959, 962 (11th Cir. 2000)). However, this tenet
is inapplicable to legal conclusions. Iqbal, 556 U.S. at 678.
Analysis
Defendants request that the Court dismiss, for failure to state a claim, Plaintiff’s claims
for trade slander/commercial disparagement (Count III) and tortious interference with
advantageous business relationships (Count IV).
I. Plaintiffs Stated A Claim for Trade Slander/Commercial Disparagement
Defendants argue that Plaintiffs’ claim for trade slander/commercial disparagement
must be dismissed for failure to plead special damages with particularity. ECF No. 24 at 4-5.
The Court disagrees.
This Court has recognized that “[i]n a disparagement action the plaintiff must allege
and prove the following elements: (1) [a] falsehood (2) has been published, or communicated
to a third person (3) when the defendant-publisher knows or reasonably should know that it
will likely result in inducing others not to deal with the plaintiff and (4) in fact, the falsehood
does play a material and substantial part in inducing others not to deal with the plaintiff[,]
and (5) special damages are proximately caused as a result of the published falsehood.” ADT
LLC v. Vivint, Inc., No. 17-CV-80432, 2017 WL 5640725, at *6 (S.D. Fla. Aug. 3, 2017)
(quoting Bothmann v. Harrington, 458 So. 2d 1163, 1168 (Fla. 3d DCA 1984)). This Court has
also recognized that “[i]f an item of special damage is claimed, it must be specifically stated.
. . . However, Rule 9(g) [of the Federal Rules of Civil Procedure] requires no more than a
specific statement that allows a defendant to prepare a responsive pleading and begin its
defense.” ThermoLife Int'l LLC v. Vital Pharms. Inc., No. 19-CV-61380, 2020 WL 409594, at *2
(S.D. Fla. Jan. 24, 2020) (citing Brennan v. City of Minneola, Fla., 723 F. Supp. 1442, 1444
(M.D. Fla. 1989)). Moreover, “[l]ost profits generally are considered special damages under
Florida law.” Mancil's Tractor Serv., Inc. v. T&iK Constr., LLC, No. 15-80520-CIV, 2016 WL
7486707, at *2 (S.D. Fla. Mar. 3, 2016) (citing Safeco Title Insurance Co. v. Reynolds, 452 So. 2d
45, 48 n.5 (Fla. 2nd DCA 1984) citing Arcade Steam Laundry v. Bass, 159 So.2d 915 (Fla. 2d
DCA 1964)).
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Here, in their trade slander/commercial disparagement claim, Plaintiffs allege:
Vivint, through its sales agents, has intentionally made false and misleading
statements about ADT, and about ADT’s products and services, in their sales
pitches to ADT’s customers as alleged herein. Vivint’s false and misleading
statements demean the quality of ADT’s goods and services. At the time the
statements were made, Vivint knew the statements to be false. The statements
are defamatory per se in that the statements suggest conduct incompatible with
the lawful exercise of business. The statements are injurious and damage ADT in
its industry and marketplace by causing ADT to lose sales, profits, and good will;
suffer injury to its reputation with consumers; and incur attorney’s fees.
ECF No. 2, First Am. Compl. ¶¶ 77-81 (emphasis added). Thus, Plaintiffs specifically allege
lost sales, profits, and goodwill to support their entitlement to special damages. In accordance
with this Court’s holding in ThermoLife Int'l LLC v. Vital Pharms. Inc. the Court finds that this
is sufficient.
Defendants’ reliance upon Five for Ent. S.A. v. Ayala Rodriguez, No. 11-24142-CIV, 2014
WL 12503331, at *2 (S.D. Fla. Aug. 15, 2014), aff'd sub nom. Five For Ent. S.A. v. El Cartel Recs.,
Inc., 646 F. App'x 714 (11th Cir. 2016), to support their argument that Plaintiffs failed to plead
special damages is misplaced. There, this Court after a trial determined that the plaintiffs
failed to present sufficient evidence to prove special damages on their injurious falsehood
claim. That is not the situation the Court faces here in evaluating the pleadings at the motion
to dismiss stage. Likewise, Defendants’ reliance upon ADT LLC v. Vivint, Inc., No. 17-CV-
80432, 2017 WL 5640725, at *7 (S.D. Fla. Aug. 3, 2017), is equally misplaced. There, the
Court did not make a specific finding as to what is required to plead special damages. Instead,
the Court only substantively addressed the arguments before it – i.e. what slander claims were
barred by Florida’s statute of limitations. In fact, with respect to the special damages issue the
Court recognized that “ADT does not argue that its general allegations as to incidents that
occurred after April 4, 2015 satisfy the particularity requirement for pleading special damages,
and asks for leave to amend the Complaint, to the extent the Court determines that the 44
specific incidents pled in the Complaint are time-barred.” 2017 WL 5640725, at *7. As a
consequence, the Court granted ADT’s request for leave to amend its complaint but did not
address what allegations are necessary to support special damages. See id.
Lastly, the Court notes that Defendants’ contention that special damages must be pled
“with particularity” lacks credence and appears to conflate Rule 9(g) with Rule 9(b) of the
Federal Rules of Civil Procedure. To be clear, Rule 9(g) of the Federal Rules of Civil
Case 1:20-cv-23391-MGC Document 71 Entered on FLSD Docket 09/30/2021 Page 4 of 11
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Procedure states, “[i]f an item of special damage is claimed, it must be specifically stated.”
Fed. R. Civ. P. 9(g). Meanwhile, Rule 9(b) of the Federal Rules of Civil Procedure states,
“[i]n alleging fraud or mistake, a party must state with particularity the circumstances
constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's
mind may be alleged generally.” Fed. R. Civ. P. 9(b) (emphasis added). Thus, in contrast to
Rule 9(b), the plain language of Rule 9(g) does not require that special damages be pled with
particularity. See Charles Alan Wright & Arthur Miller, Federal Practice and Procedure §
1311 (4th ed. 2021), Pleading Special Damages—Level of Specificity Required (“Most courts now
take the position that allegations of special damage will be deemed sufficient for the purpose
of Rule 9(g) if they are definite enough to notify the opposing party and the court of the nature
of the damages and enable the preparation of a responsive pleading. A strict approach to the
application of Rule 9(g) has little justification when special damages are sought simply as a
supplement to the plaintiff's general damages, as long as the pleading has satisfied the rule’s
underlying notice function. Additionally, Rule 9(g) merely requires that special damages be
‘specifically stated,’ not that they be stated ‘with particularity’ as is required of allegations of
fraud and mistake under Rule 9(b) or of denials of conditions precedent under Rule 9(c), a
distinction that should be respected as being meaningful.”); see also Leavitt v. Cole, 291 F. Supp.
2d 1338, 1344 (M.D. Fla. 2003) (“Rule (9)(b) requires that ‘the circumstances constituting
fraud or mistake shall be stated with particularity.’ . . . Contrast that wording with Rule 9(g),
that requires, ‘[w]hen items of special damage are claimed, they shall be specifically stated.’ .
. . Rule 9(g) should be read as remedy-focused—a requirement that parties specify the types
of ‘special damage’ they seek to recover.”) (internal citations and alterations omitted).
Therefore, the Court holds that Plaintiffs have sufficiently pled special damages in
support of their trade slander/commercial disparagement claim.
II. Plaintiffs’ Sufficiently Allege a Claim for Tortious Interference with
Advantageous Business Relationships
Next, Defendants contend that Plaintiffs claim for tortious interference with
advantageous business relationships fails because: 1) Plaintiffs failed to plead damages for
Defendants’ alleged interference with existing business relationships; and 2) Plaintiffs failed
to plead damages for Defendants’ alleged interference with Plaintiffs’ prospective contracts.
The Court will address each of these arguments in turn below.
Case 1:20-cv-23391-MGC Document 71 Entered on FLSD Docket 09/30/2021 Page 5 of 11
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“Under Florida law, ‘[t]he elements of tortious interference with a contract or business
relationship are: (1) the existence of a business relationship, not necessarily evidenced by an
enforceable contract, under which the plaintiff has legal rights; (2) the defendant's knowledge
of the relationship; (3) an intentional and unjustified interference with the relationship by the
defendant; and (4) damage to the plaintiff as a result of the interference.’” Menudo Int'l, LLC
v. In Miami Prod., LLC, No. 17-21559-CIV, 2018 WL 1138300, at *3 (S.D. Fla. Mar. 2, 2018)
(quoting Salit v. Ruden, McClosky, Smith, Schuster & Russell, P.A., 742 So. 2d 381, 385–86 (Fla.
4th DCA 1999) citing Tamiami Trail Tours, Inc. v. Cotton, 463 So. 2d 1126, 1127 (Fla. 1985);
Procacci v. Zacco, 402 So. 2d 425, 426 (Fla. 4th DCA 1981); and Linafelt v. Bev, Inc., 662 So. 2d
986, 989 (Fla. 1st DCA 1995)). In pertinent part, the First Amended Complaint alleges as
follows:
ADT maintains valid and enforceable contracts and business relationships with
its customers. Typically, ADT customers display an ADT sign outside their
homes to deter potential burglars and broadcast to the outside world that the
home is protected by ADT’s alarm system. Vivint is knowledgeable of the
contractual and business relationship between ADT and its customers. When
Vivint sales agents visit the homes of these individuals, they become (or are
already) aware of such relationship and contract by, among other means: the
sign displayed in front of the customer’s home, talking with the customer,
observing the ADT equipment in the customer’s home, or through prior
research and intelligence conducted on the customer’s address regarding
existing alarm systems. Despite knowledge of the customer’s contractual and
business relationship with ADT, Vivint sales representatives intentionally and
without valid justification interfere with such relationship using improper
means, by misleading ADT’s customers into believing that Vivint represents
ADT, or that Vivint is affiliated with ADT, or that they are visiting at ADT’s
direction, or that they work for the companies that made the ADT alarm
equipment installed in the customers’ homes, or that ADT has otherwise
blessed Vivint to work on ADT’s behalf. Once Vivint’s agents induces ADT
customers to believe that they have an existing business relationship with ADT,
Vivint’s agents lead customers to sign Vivint contracts and install Vivint alarm
systems, misleading ADT customers to believe that they are receiving new
ADT equipment from ADT, an ADT affiliate, or an ADT successor, or that
Vivint is assuming the ADT account, or that the customer has no choice but to
permit the transaction to go forward if he or she wishes to continue to have
operational alarm-monitoring services. Further, Vivint agents procure the
breach of the ADT contract upon the promise that Vivint will “buy out” the
remaining term by paying to the customer an amount equal to the remaining
obligation on their ADT contract. Vivint also offers buyouts to “save” sales
procured through deceptive sales conduct in an attempt to pacify the customer.
The customer does not always remit such payment to ADT. Even when the
Case 1:20-cv-23391-MGC Document 71 Entered on FLSD Docket 09/30/2021 Page 6 of 11
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customer does, ADT is damaged because the value of the customer’s future
account revenue often exceeds the contractual value of the remaining
contractual term. For example, absent Vivint’s improper interference, it is not
uncommon for a customer with two years left on his or her ADT contract to
remain a loyal and paying customer to ADT for many years beyond the
remaining two-year term. This is also why Vivint wrongfully engages in such
buyout practices: Vivint knows the value of an alarm account often exceeds the
immediate value under the contract. Vivint’s intentional and unjustifiable
interference with ADT’s business relationships have caused ADT to suffer
irreparable harm and damages in the form of lost goodwill and lost profits.
ADT is damaged by Vivint’s unlawful conduct by losing revenue streams that
otherwise would remain with ADT absent Vivint’s “buy out” offer.
ECF No. 22, First Am. Compl. at ¶¶ 83-89.
A. Defendants’ Argument Concerning Plaintiffs’ Existing Business Relationships
Fails
With respect to their contentions regarding Plaintiffs’ existing customers, Defendants
specifically argue:
As it pertains to an alleged ADT customer’s existing contract/business
relationship with ADT, the FAC alleges that Vivint’s “buy-out” practices
consist of a “promise that Vivint will ‘buy out’ the remaining term by paying to
the customer an amount equal to the remaining obligation on their ADT
contract.” (DE 22 at ¶ 86.) In other words, in a “buy-out” scenario, Vivint
supplies the customer with funds to complete their existing ADT contract
without committing a breach. ADT claims that it nonetheless sustains damage
from a buyout because, sometimes, “[t]he customer does not always remit such
[buyout] payment to ADT.” (DE 1 at ¶¶ 88.) Even taking this generalized and
speculative allegation as true, in such a scenario ADT does not allege any
damage caused by Vivint, but rather the intervening actions of the customer
failing to remit the funds provided for that purpose. A defendant may not be
held liable where it is not the proximate cause of the plaintiff’s alleged damage.
ECF No. 24 at pp. 8-9. This argument fails for two reasons.
First, Defendants’ argument necessarily urges the Court to look beyond the pleadings
and make inferences in Defendants’ favor, if not factual findings, concerning the nature of the
alleged “buy outs” and who caused Plaintiffs’ alleged damages. This the Court cannot do at
the motion to dismiss stage. See Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)) (“A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.”). On the face of the First Amended Complaint, Plaintiffs plainly allege
(1) the existence of business relationships; (2) the Defendants’ knowledge of those
Case 1:20-cv-23391-MGC Document 71 Entered on FLSD Docket 09/30/2021 Page 7 of 11
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relationships; (3) Defendants’ intentional and unjustified interference with those relationships
through its sales representatives; and (4) damage to Plaintiffs as a result of Defendants’
interference. And that is where the Court’s inquiry must end at the motion to dismiss phase.
See Duty Free Ams., Inc., 797 F. 3d at 1262.
The second problem with Defendants’ argument is that while it solely focuses on the
First Amended Complaint’s allegations related to “buy outs”, it ignores the preceding
allegations supporting Plaintiffs’ tortious interference claim. More specifically, Defendants
ignore the fact that in addition to their allegations regarding the purported “buy outs” and
purported failure to remit payments, Plaintiffs also allege the following:
Vivint sales representatives intentionally and without valid justification
interfere with such relationship using improper means, by misleading ADT’s
customers into believing that Vivint represents ADT, or that Vivint is affiliated
with ADT, or that they are visiting at ADT’s direction, or that they work for
the companies that made the ADT alarm equipment installed in the customers’
homes, or that ADT has otherwise blessed Vivint to work on ADT’s behalf.
Once Vivint’s agents induces ADT customers to believe that they have an
existing business relationship with ADT, Vivint’s agents lead customers to sign
Vivint contracts and install Vivint alarm systems, misleading ADT customers
to believe that they are receiving new ADT equipment from ADT, an ADT
affiliate, or an ADT successor, or that Vivint is assuming the ADT account, or
that the customer has no choice but to permit the transaction to go forward if
he or she wishes to continue to have operational alarm-monitoring services. . .
. Vivint’s intentional and unjustifiable interference with ADT’s business
relationships have caused ADT to suffer irreparable harm and damages in the
form of lost goodwill and lost profits.
ECF No. 22, First Am. Compl. at ¶¶ 86, 89. Plaintiffs allege more than just damages from the
alleged “buy out” scheme and failure to remit payment. Indeed, Plaintiffs also allege that they
suffered damages allegedly caused by Defendants’ sales representatives ostensibly tricking
Plaintiffs’ customers into believing that Defendants’ sales representatives, amongst other
things, were affiliated with Plaintiffs and/or working at Plaintiffs’ direction. Accordingly, the
Court finds that Defendants’ argument regarding the alleged “buy outs” misses the mark.
And, as such, the Court finds that Plaintiffs have indeed pled damages for Defendants’ alleged
interference with existing business relationships.1
1 Defendants also argue that “ADT has also failed to plead loss of goodwill as a cognizable
basis for damages with respect to a customer’s existing contract because, akin to trade slander,
such damages do not necessarily flow from a customer’s termination of an existing contract.
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B. Defendants’ Argument Concerning Plaintiffs’ Prospective Contracts Fails
Finally, Defendants put forth a confusing and commingled argument that appears to
suggest that Plaintiffs are not entitled to damages for future loss of revenue or profits because
Plaintiffs’ allegations concerning Defendants’ alleged interference with Plaintiffs’ prospective
business relationships are too speculative. ECF No. 24 at p. 10. This argument fails.
As previously discussed, under Florida law, “[t]he elements of tortious interference
with a business relationship are ‘(1) the existence of a business relationship; (2) knowledge of
the relationship on the part of the defendant; (3) an intentional and unjustified interference
with the relationship by the defendant; and (4) damage to the plaintiff as a result of the breach
of the relationship.’” Sentry Data Sys., Inc. v. CVS Health, 361 F. Supp. 3d 1279, 1295 (S.D.
Fla. 2018) (quoting Duty Free Americas, Inc. v. Estee Lauder Companies, Inc., 797 F.3d 1248, 1279
(11th Cir. 2015)). “As for the first element—the existence of a business relationship—the
Supreme Court of Florida has explained that the plaintiff need not allege the existence of an
enforceable contract and that the plaintiff can prevail ‘if the jury finds that an understanding
between the parties would have been completed had the defendant not interfered.’” Duty Free
Americas, Inc., 797 F.3d at 1279–80 (quoting Ethan Allen, Inc. v. Georgetown Manor, Inc., 647
So.2d 812, 814 (Fla. 1994) quoting Landry v. Hornstein, 462 So.2d 844, 846 (Fla. 3d DCA
1985)). Thus, “[a]s a general rule, an action for tortious interference with a business
relationship requires a business relationship evidenced by an actual and identifiable
understanding or agreement which in all probability would have been completed if the
defendant had not interfered.” Gov't Emps. Ins. Co. v. AFO Imaging, Inc., No. 8:20-CV-2419-
VMC-CPT, 2021 WL 2825949, at *3 (M.D. Fla. July 7, 2021) (quoting Bell v. Tampa Bay
Downs, Inc., No. 8:10-cv-2835-JSM-TBM, 2011 WL 6718266, at *1 (M.D. Fla. Dec. 21, 2011)
(citation omitted)). “A [tortious interference with a business relationship] claim may be
asserted concerning ‘present or prospective customers but no cause of action exists for tortious
interference with a business’s relationship to the community at large.’” Drenberg v. Focus! . . .
On Surety, LLC, No. 6:13-CV-1351-ORL-37, 2013 WL 6768667, at *3 (M.D. Fla. Dec. 20,
ADT must plead such damage with particularity. . . . ADT has not pleaded loss of goodwill
in accordance with Fed. R. Civ. P. 9(g)[.]” Because the Court has already determined that
Plaintiffs are not required to plead special damages “with particularity”, it will not consider
Defendants’ particularity argument with respect to Plaintiffs’ claim for tortious interference
with advantageous business relationships.
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2013) (quoting Ethan Allen, Inc. v. Georgetown Manor, Inc., 647 So.2d 812, 814–15 (Fla. 1994)).
“At the pleading stage, it is not necessary to name the specific customers at issue so long as
there are sufficient allegations concerning a business relationship that affords the claimant
‘existing or prospective legal or contractual rights.’” Id. (quoting Ethan Allen, Inc., 647 So. 2d
at 814).
Here, Plaintiffs have alleged that “absent Vivint’s improper interference, it is not
uncommon for a customer with two years left on his or her ADT contract to remain a loyal
and paying customer to ADT for many years beyond the remaining two-year term.” ECF No.
22, First Am. Compl. at ¶88. These allegations, taken as true, are sufficient to allege that
Defendants interfered with Plaintiffs’ prospective business relationships with its current
customers. See Sentry Data Sys., Inc., 361 F. Supp. 3d 1279, 1295 (S.D. Fla. 2018) (“Sentry
alleges that it had valid exclusive contracts with its customers, that CVS knew about these
contracts, and that CVS intentionally and unjustifiably interfered with these contracts using
Sentry's trade secrets and confidential information to coerce Sentry's customers to breach their
existing contracts or fail to renew expiring contracts. Sentry further alleges that certain
business relationships which were in the negotiation process were stalled or prevented from
being finalized based on CVS's interference. Taking these allegations as true, Plaintiff has
adequately pleaded its tortious interference claims.”) (internal citations omitted). It may be
the case that Plaintiffs will not adduce sufficient evidence to support this claim for purposes
of summary judgment or trial; however, at the motion to dismiss stage, the Court finds that
Plaintiffs have stated a plausible claim.
Accordingly, for the reasons discussed above, it is hereby ORDERED and
ADJUDGED that the Motion to Dismiss filed by Defendants Vivint Smart Home, Inc. f/k/a
Mosaic Acquisition Corp. and Legacy Vivint Smart Home, Inc. f/k/a Vivint Smart Home,
Inc. (ECF No. 24) is DENIED. Defendants Vivint Smart Home, Inc. f/k/a Mosaic
Acquisition Corp. and Legacy Vivint Smart Home, Inc. f/k/a Vivint Smart Home, Inc. are
directed to file an answer to the complaint within ten (10) days of the date of this Order. No
extensions of time will be permitted.
Case 1:20-cv-23391-MGC Document 71 Entered on FLSD Docket 09/30/2021 Page 10 of 11
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DONE and ORDERED in Chambers at Miami, Florida this 30th day of September
2021.
    LS/ Marsha Cooke, USDJ
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    There is no charge to post a listing here.Include your contact information, phone, email and web site.  If you would like to submit a post, please send an email to ken@kirschenbaumesq.com.  To create a reciprocal link to our website, click here.
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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301
ken@kirschenbaumesq.com
www.KirschenbaumEsq.com