De Ford v. Koutoulas

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

ERIC DE FORD, SANDRA

BADER and SHAWN R. KEY,

Plaintiffs,

v. Case No: 6:22-cv-652-PGB-DCI

JAMES KOUTOULAS and

LGBCOIN, LTD,

Defendants.

/

ORDER

This cause is before the Court upon Plaintiffs Eric De Ford, Sandra Bader,

and Shawn R. Key’s (collectively, the “Plaintiffs” or the “named Plaintiffs”)

Motion for Class Certification, Appointment of Class Representatives, and

Appointment of Class Counsel. (Doc. 373 (the “Motion”)). Defendants James

Koutoulas and LGBCoin, LTD (collectively, the “Defendants”) filed a response in

opposition. (Doc. 403 (the “Response”)). Additionally, Defendants filed two

notices of supplemental authority. (Docs. 439, 445 (the “Notices of

Supplemental Authority”)). Plaintiffs filed a reply. (Doc. 406 (the “Reply”)).

Upon due consideration, the Motion is due to be granted in part and denied in

part.1

1 The Court notes that a pro se non-party filed a Motion to Intervene pursuant to Federal Rule

of Civil Procedure 24. (Doc. 452). The Court will address the Motion to Intervene by separate

order.

I. BACKGROUND

The lengthy factual and procedural backgrounds of this case are largely laid

out in the Court’s prior orders. (See, e.g., Docs. 229, 354, 388, 389).

This putative class action was initiated on April 1, 2022, and arises from the

creation, marketing, and sale of LGBCoin, a cryptocurrency. (Doc. 1). Defendant

James Koutoulas (“Defendant Koutoulas”) created LGBCoin in November of

2021 and marketed it both personally and through Defendant LGBCoin, LTD

(“Defendant LGBCoin”). (Doc. 373, p. 1). The named Plaintiffs, Eric De Ford,

Sandra Bader, and Shawn R. Key, purchased LGBCoin and now bring suit on behalf

of themselves and all others similarly situated nationwide. (Doc. 245, ¶¶ 19–21;

Doc. 376, ¶¶ 2–11; Doc. 377, ¶ 2; Doc. 378, ¶¶ 2–4).

The following claims remain: (1) violation of Section 12(a)(1) of the

Securities Act of 1933 (15 U.S.C. § 77l(a)(1)) against Defendant Koutoulas; (2)

unjust enrichment against Defendant Koutoulas; and (3) unjust enrichment

against Defendant LGBCoin. (Doc. 245 (the “Third Amended Complaint”), ¶¶

369–81, 404–07, 416–19; see generally Docs. 1, 21, 74, 229, 245, 354).

Ultimately, Plaintiffs filed the instant Motion for Class Certification,

Appointment of Class Representatives, and Appointment of Class Counsel. (Doc.

373).2 Defendants filed a Response to the Motion, and Plaintiffs filed a Reply

2 Plaintiffs’ supporting evidence can be located at Docs. 374 through 379. (See, e.g., Doc. 374

(Expert Declaration of Scott D. Hakala, Ph.D., CFA); Doc. 375 (Expert Declaration of Brennan

Long); Doc. 376 (Declaration of named Plaintiff Eric De Ford); Doc. 377 (Declaration of

named Plaintiff Sandra Bader); Doc. 378 (Declaration of named Plaintiff Shawn R. Key); Doc.

379 (Declaration of attorney Aaron M. Zigler and accompanying exhibits)).

thereto. (Docs. 403, 406). Defendants subsequently filed their Notices of

Supplemental Authority. (Docs. 439, 445). The matter is thus ripe for the Court’s

review. Upon consideration, the Court grants the Motion in part and denies it in

part.

II. STANDARD OF REVIEW

“Questions concerning class certification are left to the sound discretion of

the district court.” Griffin v. Carlin, 755 F.2d 1516, 1531 (11th Cir. 1985). To certify

a class action, the moving party must satisfy several prerequisites. First, the

movant must demonstrate that the named plaintiffs have standing. Vega v. T-

Mobile USA, Inc., 564 F.3d 1256, 1265 (11th Cir. 2009). Second, the putative class

must meet the requirements enumerated and implied in Federal Rule of Civil

Procedure 23(a). Little v. T-Mobile USA, Inc., 691 F.3d 1302, 1304 (11th Cir. 2012).

Those requirements are ascertainability, “numerosity, commonality, typicality,

and adequacy of representation.” Id. (quoting Valley Drug Co. v. Geneva Pharms.,

Inc., 350 F.3d 1181, 1188 (11th Cir. 2003)). Third, the putative class must fit into at

least one of the three class types defined by Rule 23(b). Id.

Certifying a class involves “rigorous analysis of the [R]ule 23 prerequisites.”

Vega, 564 F.3d at 1266 (quoting Castano v. Am. Tobacco Co., 84 F.3d 734, 740

(5th Cir. 1996)). Ultimately, the burden to show that the elements required for

certification are “in fact satisfied” lies with the moving party. Brown v. Electrolux

Home Prods., Inc., 817 F.3d 1225, 1234 (11th Cir. 2016) (citing Comcast Corp. v.

Behrend, 569 U.S. 27, 33–34 (2013)). “Of course, the district court can consider

the merits ‘only’ to the extent ‘they are relevant to determining whether the Rule

23 prerequisites’” are met. Id. (quoting Amgen Inc. v. Conn. Ret. Plans & Tr.

Funds, 568 U.S. 455, 466 (2013)); Vega, 564 F.3d at 1266 (quoting Valley Drug,

350 F.3d at 1188 n.15) (noting the class certification inquiry is not a merits

determination, though the court “can and should consider the merits of the case to

the degree necessary to determine whether the requirements of Rule 23 will be

satisfied”). “But if a question of fact or law is relevant to that determination, then

the district court has a duty to actually decide it and not accept it as true or construe

it in anyone’s favor.” Brown, 817 F.3d at 1234 (citing Comcast, 569 U.S. at 33–34).

III. DISCUSSION

Plaintiffs seek to certify the following class pursuant to Federal Rule of Civil

Procedure 23(a) and 23(b)(3): “All persons who, between November 2, 2021, and

March 15, 2022, purchased LGBCoin.” (Doc. 373, p. 6 (the “Class”)). The following

persons are excluded from the Class: Defendants; Defendants’ affiliates, agents,

employees, officers, and directors; Plaintiffs’ counsel and Defendants’ counsel; and

Judge Byron, his staff, and any member of his immediate family. (Id.).

The Court first addresses Defendants’ miscellaneous arguments in the

Response. Next, the Court addresses Article III standing. Finally, the Court

analyzes each of the requirements for class certification under Rule 23(a) and Rule

23(b)(3). However, the Court’s Rule 23(a) analysis is limited to Plaintiffs’ Section

12(a)(1) claims because the Court’s Rule 23(b)(3) predominance analysis is

dispositive of Plaintiffs’ unjust enrichment claims.3

A. Defendants’ Miscellaneous Arguments

As an initial matter, the Court notes that Defendants’ Response is largely

composed of “perfunctory and underdeveloped” arguments, and thus, the Court

need not consider such arguments.4 (Doc. 403); see U.S. Steel Corp. v. Astrue, 495

F.3d 1272, 1287 n.13 (11th Cir. 2017) (noting that the court need not consider

“perfunctory and underdeveloped” arguments and that such arguments are

waived). In any event, the Court briefly addresses and rejects the arguments that

are somewhat supported.

1. Merits Contentions

a. Plaintiffs’ Standing to Sue Under Section 12(a)(1)

Defendants’ Response primarily hinges on the assertion that Plaintiffs lack

“standing” to sue under Section 12 of the Securities Act of 1933.5 (Doc. 403, pp. 5–

3 “Because the Court finds Rule 23(b)(3)’s predominance requirement to be dispositive here, it

limits its discussion to that aspect of the certification inquiry.” See Birmingham v. RoFx.net,

No. 21-cv-23472, 2023 WL 3378177, at *3–5 (S.D. Fla. May 11, 2023).

4 In the Response, Defendants adopt the approach of throwing every argument at the wall with

the hope that the Court will sift through to see what sticks. (See generally Doc. 403). For

example, Defendants fail to develop several arguments and fail to cite to legal authority or to

the record. (Id.). In the few instances where there are citations, the citations are either

incomplete, inaccurate, or do not properly support the stance Defendants present. (Id.).

Further, in a cursory manner, Defendants recycle various arguments that the Court has

thoroughly addressed in previous Orders. (Id.). The Court advises defense counsel to refrain

from such practices in all future filings.

5 Defendants seemingly conflate Article III standing with “statutory standing.” (See Doc. 403,

p. 7 (relying on Article III to argue that Plaintiffs cannot state their claims under Section

12(a)(1)); see also D0c. 403, pp. 5–7, 11, 17, 19). Article III standing limits “the judicial power

to resolving ‘Cases’ and ‘Controversies.’” See Lexmark Int’l, Inc. v. Static Control Components,

7, 11, 17, 19). While this assertion seemingly relates to a merits determination, the

Court addresses it to the extent Defendants maintain that it pertains to the Rule

23 requirements. See Vega, 564 F.3d at 1266 (noting that courts “can and should

consider the merits of the case [only] to the degree necessary to determine whether

the requirements of Rule 23 will be satisfied” (quoting Valley Drug, 350 F.3d at

1188 n.15)).

In sum, Defendants maintain that Plaintiffs cannot pursue their claims

under Section 12(a)(1) because they have not alleged “any direct transactions with

Defendants nor any initial offering transactions.” (Doc. 403, p. 6). Defendants thus

conclude that “it is impossible for any of the Plaintiffs to serve as an adequate

representative under Rule 23.” (Id. at p. 8). In support, Defendants cite to cases

analyzing claims under Section 12(a)(2). (Id. at p. 6). Plaintiffs’ claims, however,

arise under Section 12(a)(1). (Doc. 245, ¶¶ 369–81). Yet, Defendants do not cite

to—nor has the Court otherwise located—any cases supporting their assertion that

Plaintiffs cannot bring their Section 12(a)(1) claims for secondary market

purchases. (See Doc. 403).

Like the Defendants here, the defendants in Hardin v. TRON Foundation,

No. 20-CV-2804, 2024 WL 4555629, at *11–12 (S.D.N.Y. Oct. 23, 2024) made the

Inc., 572 U.S. 118, 125 (2014). As such, the requirements for Article III standing are grounded

in the Constitution and are further discussed infra Section III.B. See id. In contrast, “statutory

standing” seeks to “ascertain, as a matter of statutory interpretation, the scope of the private

remedy created by Congress . . . and the class of persons who could maintain a private damages

action under that legislatively conferred cause of action.” Id. at 126. Thus, Defendants’

“standing” assertion refers to statutory standing—rather than Article III standing—because

Defendants’ arguments challenge whether Plaintiffs can maintain their claims under Section

12(a)(1). (See Doc. 403, pp. 5–7, 11, 17, 19).

same, mistaken assertion.6 The Hardin court clarified that “unlike Section

12(a)(2), Section 12(a)(1) applies to the unlawful sale of an unregistered security in

an initial offering and in any subsequent sales.” See id. (collecting cases); see also

Zakinov v. Ripple Labs, Inc., No. 18-cv-06753-PJH, 2020 WL 922815, at *11–12

(N.D. Cal. Feb. 26, 2020) (analyzing the statutory text in support of this

proposition). The Hardin court also clarified the Supreme Court’s decision in

Gustafson v. Alloyd Co., 513 U.S. 561 (1995), a case that Defendants here rely upon

in their Response. (Doc. 403, p. 6); see Hardin, 2020 WL 922815, at *11; see also

Zakinov, 2020 WL 922815, at *11 (clarifying Gustafson in the same context).

Specifically, the Hardin court explained that in Gustafson:

[T]he word “prospectus” in Section 12(a)(2) of the Securities

Act applied to “documents related to public offerings by an

issuer or its controlling shareholder,” thus barring Section

12(a)(2)’s application to secondary market purchasers that do

not involve a prospectus. [] However, Section 12(a)(1) does

not include any reference to a prospectus, but rather provides

that “[a]ny person who . . . offers or sells a security in violation

of section [5] of this title . . . shall be liable, subject to

subsection (b), to the person purchasing such security from

him.” 15 U.S.C. § 77l(a).

See Hardin, 2020 WL 922815, at *11 (citations omitted).

Thus, “[t]he logic that prohibits secondary market purchasers from bringing

a claim under Section 12(a)(2) because they did not participate in the initial coin

offering does not extend to Section 12(a)(1) claims,” and the Court declines to

extend it here. Id. at *12; see Zakinov, 2020 WL 922815, at *12 (finding that it may

6 “Unpublished cases do not constitute binding authority and may be relied on only to the extent

they are persuasive.” Searcy v. R.J. Reynolds Tobacco Co., 902 F.3d 1342, 1355 (11th Cir.

2018).

consider a Section 12(a)(1) claim “outside the initial distribution context” because

“subsection (a)(1) provides a broader basis for assigning liability than its

subsection (a)(2) counterpart”). Consequently, the Court finds Defendants’

arguments as to Section 12(a)(1) “standing” unavailing.

b. Whether LGBCoin Is a Security

Next, in the Response and in the Notices of Supplemental Authority,

Defendants, ad nauseum, raise the argument that LGBCoin should not be

considered a security. (See Docs. 403, 439, 445). The inquiry of whether LGBCoin

is a security relates to the elements of Plaintiffs’ Section 12(a)(1) claims. See

discussion infra Section III.D.1.a. (outlining the elements of a Section 12(a)(1)

claim). As such, this is a merits contention that the Court may only consider to the

degree necessary to decide the certification issues at this procedural juncture. See

Brown, 817 F.3d at 1234 (citing Amgen, 568 U.S. at 466); Zakinov v. Ripple Labs,

Inc., No. 18-cv-06753-PJH, 2023 WL 4303644, at *3–4 (N.D. Cal. June 30, 2023)

(referring to the question of whether the cryptocurrency was a security as a merits

issue). While Defendants repeatedly raise this merits contention, they fail to

demonstrate how this contention is relevant to the Court’s Rule 23 analysis. (See

Docs. 403, 439, 445). Therefore, the Court may not address this argument.7 See

Amgen, 568 U.S. at 466 (“Rule 23 grants courts no license to engage in free-

ranging merits inquiries at the certification stage.” (citations omitted)).

7 The Court will, of course, consider these merits arguments at the proper procedural posture.

c. Piercing the Corporate Veil

Next, devoid of any legal authority in support, Defendants assert that

Plaintiffs fail to pierce the corporate veil. (Doc. 403, pp. 14–15). This argument,

too, is a merits contention, and thus, the Court will not consider it at this

procedural juncture. See Brown, 817 F.3d at 1234 (citing Amgen, 568 U.S. at 466);

see also supra note 7. Additionally, the Court previously rejected this exact

argument raised by Defendant Koutoulas.8 (See Doc. 354, p. 18 n.8).

3. Arguments Previously Addressed by the Court

Then, Defendants vaguely allude to Plaintiffs’ alleged violations of the

Private Securities Litigation Reform Act (“PSLRA”). (Doc. 403, pp. 2, 6, 19). The

Court invites Defendants to review three of its prior Orders in which it addressed

Defendants’ similar arguments regarding the PSLRA. (See Docs. 284, 300, 354).

Finally, in a cursory manner, Defendants repeatedly argue that Plaintiffs

have not alleged a “single transaction in privity with” Defendants. (Doc. 403, pp.

2, 7–8, 15). As Plaintiffs note in their Reply, the Court previously rejected this

argument when it ruled on Defendant Koutoulas’s Motion to Dismiss. (Doc. 406,

p. 2; see Doc. 229, pp. 37–39)

8 In an Order ruling on Defendant Koutoulas’s Motion to Dismiss, the Court welcomed him “to

bring this defense later at a different procedural posture.” (Doc. 354, p. 18 n.8). However, as

explained above, class certification is typically not the proper procedural posture to raise

merits contentions. To the extent Defendant Koutoulas seeks to raise this argument again, the

Court cautions Defendant Koutoulas that, per the Court’s prior Order, he must “marshal

record evidence to warrant” his conclusion as to piercing the corporate veil. (See id.).

B. Standing

A plaintiff’s standing to bring and maintain a lawsuit is a fundamental

component of a federal court’s subject matter jurisdiction. Clapper v. Amnesty

Int’l USA, 568 U.S. 398, 408 (2013). To establish standing, the plaintiff bears the

burden of demonstrating that he suffered an actual injury, that a causal connection

exists between the injury and the defendant’s conduct, and that the injury is likely

to be redressed by a favorable decision. Harrell v. Fla. Bar, 608 F.3d 1241, 1253

(11th Cir. 2010). Prior to summary judgment, meeting these elements is not a

particularly onerous task and will be completed by asserting “general factual

allegations of injury resulting from the defendant’s conduct.” Lujan v. Defs. of

Wildlife, 504 U.S. 555, 561 (1992). Only the named plaintiffs in a putative class

action must demonstrate standing upon seeking certification, even while courts

must eventually ensure that no relief is granted to absent class members who might

later turn out not to have standing. Cordoba v. DIRECTV, LLC, 942 F.3d 1259,

1271–74 (11th Cir. 2019).

The named Plaintiffs allege facts sufficient to demonstrate their standing to

bring and maintain their claims. The named Plaintiffs purchased LGBCoin and

consequently suffered investment losses. (Doc. 245, ¶¶ 19–21; Doc. 376, ¶¶ 2–11;

Doc. 377, ¶ 2; Doc. 378, ¶¶ 2–4; Doc. 403-1, 28:18–20, 30:20–31:6, 83:17; Doc.

403-2, 11:25–12:3, 12:21–22). The named Plaintiffs demonstrate a causal

connection between their financial injury and Defendants’ promotion and sale of

LGBCoin. (Doc. 245, ¶¶ 22, 28; Doc. 374, pp. 4, 29–32). Finally, Plaintiffs’ financial

injuries will be redressed assuming a favorable judgment through damages.

C. Rule 23(a)9

“The burden of proof to establish the propriety of class certification rests

with the advocate of the class.” Valley Drug, 350 F.3d at 1187. As a threshold

matter, “the putative class must meet each of the requirements specified in Federal

Rule of Civil Procedure 23(a).” Klay v. Humana, Inc., 382 F.3d 1241, 1250 (11th

Cir. 2004).

1. Ascertainability

Ascertainability is an implied prerequisite of Rule 23(a). Cherry v. Domestic

Corp., 986 F.3d 1296, 1302 (11th Cir. 2021); Little, 691 F.3d at 1304. “Before a

district court may grant a motion for class certification, a plaintiff seeking to

represent a putative class must establish that the putative class is adequately

defined and clearly ascertainable.” Little, 691 F.3d at 1304. To that end, “a putative

class is ascertainable if it is adequately defined such that its membership is capable

of determination.” Cherry, 986 F.3d at 1302. The Eleventh Circuit, however, does

not require administrative feasibility under Rule 23(a)’s ascertainability

requirement. Id. at 1302–04. Instead, ascertainability requires only that the class

definition avoid vague or subjective criteria so that it is adequately defined. Id. at

9 The Court again notes that because its Rule 23(b)(3) predominance analysis is dispositive as

to Plaintiffs’ unjust enrichment claims, the Court limits its Rule 23(a) analysis to Plaintiffs’

Section 12(a)(1) claims. See supra note 3. As such, because Plaintiffs’ Section 12(a)(1) claims

are pled only as to Defendant Koutoulas, the Court limits most of its discussion to Defendant

Koutoulas.

1302. Put another way, if the putative class contains vague or subjective criteria,

then the certifying court cannot ascertain who belongs in the class. Id.

Here, Plaintiffs contend that the class is readily ascertainable because “[a]

class list can be constructed for notice purposes from transactional records

available from Defendants, or alternatively from publicly accessible blockchain

ledger information, and other public sources.” (Doc. 373, pp. 8–9). In support of

the blockchain ledger option, Plaintiffs provide an expert declaration to explain the

use of the blockchain to identify, verify, and notify purchasers of LGBCoin.10 (See

id. at pp. 9–10; see also Doc. 375). In response, Defendant Koutoulas summarily

argues that Plaintiffs “have proposed no way to differentiate” the excluded persons

from the Class definition. (Doc. 403, p. 14).

The Court finds that Plaintiffs sufficiently demonstrate that Class

“membership is capable of determination.” Cherry, 986 F.3d at 1302. Indeed,

membership in the Class turns on the objective, verifiable criterion of having

purchased LGBCoin during the specific dates of the Class period. (Doc. 373, pp. 8–

10 In the Response, Defendant Koutoulas asks the Court to not consider Plaintiffs’ expert reports

for the purposes of this Motion. (Doc. 403, pp. 18–19). Defendant Koutoulas cites to the

Eleventh Circuit’s unpublished opinion in Sher v. Raytheon Co., 419 F. App’x 887, 890–91

(11th Cir. 2011) for the proposition that “a complete Daubert analysis must be performed prior

to class certification when the expert opinion ‘is critical to class certification.’” (Id.). Defendant

Koutoulas’s reliance on Sher is misguided. (See id.). The Sher court explained that: “In

American Honda [Motor Co., Inc. v. Allen, 600 F.3d 813 (7th Cir. 2010)], the Seventh Circuit

found that ‘when an expert’s report or testimony is critical to class certification, as it is here .

. . , a district court must conclusively rule on any challenge to the expert’s qualifications or

submissions prior to ruling on a class certification motion.’” 419 F. App’x at 890 (emphasis

added). Accordingly, in Sher, the Eleventh Circuit found “that the district court erred by not

weighing conflicting expert testimony presented by both parties at the class certification

stage.” Id. at 891. Such is not the case here. Defendant Koutoulas has not provided conflicting

expert testimony, nor has he submitted any challenges to the qualifications or submissions of

Plaintiffs’ experts.

10; see Docs. 374, 375). As detailed by Plaintiffs’ expert, “track and trace”

methodologies can be used to trace “information containing personal identifiers

such as name [] and address.” (Doc. 373, p. 9 (citing Doc. 375, ¶¶ 22, 53); see Doc.

373, p. 2 n.1). With this information, Plaintiffs can identify and separate those

persons excluded from the Class definition. Plaintiffs have thus, in fact, proposed

a way to differentiate the excluded persons from the Class definition, and

consequently, Defendant Koutoulas’s argument fails.

2. Numerosity

Numerosity requires that “the class is so numerous that joinder of all

members is impracticable.” FED. R. CIV. P. 23(a)(1). A general rule of thumb is that

more than forty members is sufficient to demonstrate that joinder is impracticable.

See Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 595 (3d Cir. 2012). While the

party seeking certification need not identify the exact number of members in the

putative class, they cannot rest on “mere allegations of numerosity.” Evans v. U.S.

Pipe & Foundry Co., 696 F.2d 925, 930 (11th Cir. 1983). Rather, the movant must

provide the court with sufficient proof to support a reasoned finding that the

certified class would meet the numerosity requirement. Vega, 564 F.3d at 1267.

Plaintiffs maintain there were “more than 10,000 unique account holders of

LGBCoin” during the Class period. (Doc. 373, p. 10 (citing Doc. 245, ¶ 363)). In

support, Plaintiffs provide an expert declaration detailing that “[t]here were

thousands of accounts and trades analyzed from publicly available decentralized

exchange data” for LGBCoin. (Doc. 374, ¶ 13). Defendant Koutoulas does not

contest this element. (See Doc. 403). The numerosity requirement is easily met

through this number alone.

3. Commonality

Commonality requires that “there are questions of law or fact common to

the class.” FED. R. CIV. P. 23(a)(2). This prerequisite does not demand that all

questions of law or fact be common among the class members, only that all

members base their claims on a common contention that is “capable of classwide

resolution.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349–50 (2011). The

common question of law or fact is sufficient so long as answering the question can

help determine the validity of all class members’ claims “in one stroke” and in a

way that will “aid in the resolution of the case.” Id. at 359. The commonality

requirement is not to be confused with the predominance requirement for

certifying a Rule 23(b)(3) class because commonality is satisfied by only one

common question.11 Vega, 564 F.3d at 1268.

Plaintiffs advance a series of “questions of law or fact common” to the Class

with respect to their Section 12(a)(1) claims against Defendant Koutoulas. (Doc.

373, pp. 12–14); see FED. R. CIV. P. 23(a)(2). These common questions include

whether LGBCoin is a security; whether LGBCoin was registered as a security; and

11 The predominance requirement of Rule 23(b)(3), in contrast, refers to the class’s cohesion as

a whole by testing whether common questions of law and fact predominate over issues unique

to each class member. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 622–23 n.18 (1997).

whether Defendant Koutoulas offered or sold LGBCoin. (Doc. 373, p. 12; Doc. 245,

¶¶ 369–81).

Defendant Koutoulas does not dispute the commonality element.12 (See Doc.

403). Nonetheless, based upon the common questions outlined above, the Court

readily finds the commonality element met in this case. See Williams v. Mohawk

Indus., Inc., 568 F.3d 1350, 1356 (11th Cir. 2009) (noting that Rule 23(a)(2) is a

“low hurdle”); see also Wal-Mart, 564 U.S. at 359 (“[F]or purposes of Rule

23(a)(2) [e]ven a single [common] question will do.” (internal quotation marks

and citation omitted)).

4. Typicality

Typicality demands that “the claims or defenses of the representative parties

are typical of the claims or defenses of the class.” FED. R. CIV. P. 23(a)(3). This

element of certification “focuses on the similarity between the named plaintiffs’

legal and remedial theories and the theories of those whom they purport to

represent.” Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 625 (5th Cir.

1999) (quoting Lightbourn v. County of El Paso, 118 F.3d 421, 426 (5th Cir. 1997)),

cert. denied, 528 U.S. 1159 (2000). The named plaintiffs’ claims do not need to be

identical to the claims of the absent class members, but there must be a “sufficient

nexus . . . between the legal claims of the named class representatives and those of

individual class members to warrant class certification.” Ault v. Walt Disney

12 At most, Defendant Koutoulas briefly mentions the commonality element when asserting his

arguments related to ascertainability, but the Court has already addressed and rejected such

arguments. See supra III.C.1.

World Co., 692 F.3d 1212, 1216 (11th Cir. 2012) (citation omitted). A “sufficient

nexus” exists when “the claims or defenses of the class and the class

representative[s] arise from the same event or pattern or practice and are based on

the same legal theory.” Id.

Plaintiffs argue that their claims “are typical of those of the Class as they

have the same interests and have suffered the same injuries as the other members

of the Class.” (Doc. 373, p. 15). Defendant Koutoulas does not address typicality.

The claims of the named Plaintiffs here are typical of the claims of the

putative Class of persons who purchased LGBCoin during the relevant Class

period. (Doc. 373, p. 6). The putative Class members’ claims and the named

Plaintiffs’ claims involve the alleged sale of LGBCoin, an unregistered security.

(Doc. 245, ¶¶ 369–81). The named Plaintiffs, like all members of the putative Class,

purchased LGBCoin. (Doc. 245, ¶¶ 19–21; Doc. 403-1, 28:18–20, 30:20–31:6,

83:17; Doc. 403-2, 11:25–12:3, 12:21–22). The named Plaintiffs, like all members

of the putative Class, seek to recover damages suffered in connection with their

respective purchases of LGBCoin. (Doc. 245, ¶ 381; Doc. 376, ¶¶ 2–11; Doc. 377, ¶

2; Doc. 378, ¶¶ 2–4). Thus, considering the “similarity between the named

plaintiffs’ legal and remedial theories and the theories of those whom they purport

to represent,” Rule 23(a)(3) typicality is met. See Mullen, 186 F.3d at 625.

5. Adequacy of Representation

The final Rule 23(a) element, adequacy of representation, requires that that

“the representative parties will fairly and adequately protect the interests of the

class.” FED. R. CIV. P. 23(a)(4). Adequacy of representation refers both to the

named plaintiff who intends to represent the absent class members and to the

lawyers who intend to serve as class counsel. London v. Wal-Mart Stores, Inc., 340

F.3d 1246, 1253 (11th Cir. 2003).

a. Adequacy of Named Plaintiffs

A named plaintiff will be adequate as long as (1) he is qualified, and (2) he

has no substantial conflict of interest with the class. Valley Drug, 350 F.3d at 1189.

A named plaintiff is qualified if he holds a basic understanding of the facts and

legal theories underpinning the lawsuit and is willing to shoulder the burden of

litigating on the class’s behalf. See New Directions Treatment Servs. v. City of

Reading, 490 F.3d 293, 313 (3d Cir. 2007). At the certification stage, inquiry into

a putative representative’s qualifications is not especially stringent. See

Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718, 727 (11th Cir. 1987) (stating that

certification should only be denied for inadequate representation where the

plaintiff’s lack of knowledge and involvement essentially amounts to abdication of

his role in the case), cert. denied, 485 U.S. 959 (1988). A named plaintiff will have

a substantial conflict of interest “only if the conflict between the representative and

the class is a fundamental one, going to the specific issues in controversy.” Carriulo

v. Gen. Motors Co., 823 F.3d 977, 989 (11th Cir. 2016). A conflict is “fundamental”

when “some party members claim to have been harmed by the same conduct that

benefitted other members of the class.” Valley Drug, 350 F.3d at 1189.

The named Plaintiffs assert they are well suited to represent the Class

because they “have been actively involved in this litigation.” (Doc. 373, p. 16). The

named Plaintiffs note they have participated in this litigation and are “aware of

their fiduciary duties to absent class members if appointed class representatives.”

(Id.). Moreover, the named Plaintiffs maintain that their claims arise from the

same events and legal theory, and thus, their interests are “directly aligned” with

those of the putative Class. (Id.). In response, Defendant Koutoulas asserts that

Plaintiffs cannot adequately protect the interests of the Class because their claims

are adverse to the putative Class. (Doc. 403, p. 17). Defendant Koutoulas posits

that if Plaintiffs’ claims were to succeed, the “resulting relief would be

unconscionable as it would [] make LGBCoin’s successor, LETSGO, untradeable in

the US as there is no registered broker dealer capable of trading a security meme

coin.” (Id.).

As to qualifications, the Court finds the named Plaintiffs are qualified

because they have a general understanding of the claims, facts, and theory of the

present case, as well as the relief being sought. (Doc. 376, ¶ 14; Doc. 377, ¶ 5; Doc.

378, ¶ 8; Doc. 403-1, 4:23–5:14, 6:18–7:5, 96:3–12); see also New Directions

Treatment Servs., 490 F.3d at 313. Each of the named Plaintiffs, in their respective

declarations, represent that they have “supervised and monitored the progress of

this litigation” by communicating with counsel, reviewing filings, and producing

documents pursuant to Defendants’ discovery requests. (Doc. 376, ¶ 14; Doc. 377,

¶ 5; Doc. 378, ¶ 8).

With respect to conflicts of interest, the Court does not find a “fundamental”

conflict, “going to the specific issues in controversy.” See Carriulo, 823 F.3d at 989.

Defendant Koutoulas argues that classifying LGBCoin as a security would be

“unconscionable” as it would make LGBCoin’s successor, LETSGO, untradeable.13

(Doc. 403, p. 17). The Court notes that Defendant Koutoulas fails to provide any

explanation or evidence in support of this argument, and for that reason alone, this

argument fails. See In re Disposable Contact Lens Antitrust, 329 F.R.D. 336, 410

(M.D. Fla. 2018) (“Moreover, a conflict will not defeat the adequacy requirement

if it is merely speculative or hypothetical.” (internal quotation marks omitted)

(quoting Ward v. Dixie Nat. Life Ins. Co., 595 F.3d 164, 180 (4th Cir. 2010))).14

Even if Defendant Koutoulas properly supported this argument, he still misses the

mark here and ignores what a “fundamental conflict” is for Rule 23(a)(4) purposes.

(Doc. 403, p. 17). Specifically, Defendant Koutoulas fails to demonstrate that his

conduct has harmed some members of the class while benefiting others. (See id.);

see Valley Drug, 350 F.3d at 1189 (“A fundamental conflict exists where some

13 The Court briefly addresses an additional argument Defendant Koutoulas raises as to a

potential conflict of interest under Rule 23(a)(4). Defendant Koutoulas presents that he

“continues to be well supported by the LGBCoin community of coinholders who, other than

the three (3) Plaintiffs with 0.02% of alleged damages, support his prosecution of the State

Court Case as trustee of the Foundation and continued political advocacy.” (Doc. 403, p. 18).

Simply put, the issue before the Court is whether Defendant Koutoulas sold unregistered

securities, which is irrelevant to whether potential class members “support” him as an

individual. (Id.).

14 “‘Potential’ conflicts of interest are likewise insufficient to defeat certification; instead, a district

court should continue to monitor the matter going forward and may ‘revisit the issue and de-

certify the class if a true conflict ever manifested.’” In re Disposable Contact Lens Antitrust,

329 F.R.D. at 410 (quoting In re Vitamin C Antitrust Litig., 279 F.R.D. 90, 113 (E.D.N.Y.

2012)); see FED. R. CIV. P. 23(c)(1)(C) (“An order that grants or denies class certification may

be altered or amended before final judgment.”).

party members claim to have been harmed by the same conduct that benefitted

other members of the class.”).

Furthermore, Defendant Koutoulas’s argument also fails under Zakinov. In

Zakinov, the defendants similarly argued, as to Rule 23(a)(4), that: “many of the

putative class members disagree with the premise of plaintiff’s lawsuit because

they do not think XRP should be considered a security [and thus,] those differing

beliefs place plaintiff in conflict with those class members.” 2023 WL 4303644, at

*3. The Zakinov court held:

Because the Howey test is an objective one, defendants’

argument that the class members are in conflict due to

“differing expectations” is inapposite. The merits issue of

whether XRP is a security will be the same for all class

members, regardless of each member’s individual

expectations. And to the extent that defendants invoke the

prospect of harm and/or legal liability to those dissenting

class members, that argument relies on speculation. Most

importantly of all, as the court pointed out at the hearing that

any disagreements by potential class members over the

premise of the lawsuit can be remedied by the standard opt-

out procedure, allowing any dissenting class members to

simply remove themselves from the lawsuit. The ability to opt-

out addresses any concern over potential disagreements

between class members as to the aims of the lawsuit. See also,

e.g., Lee v. Pep Boys-Manny Moe and Jack of California,

2015 WL 9480475 (N.D. Cal. Dec. 23, 2015) (“[a] difference of

opinion about the propriety of the specific relief sought in a

class action among potential class members is not sufficient

to defeat certification.”); Californians for Disability Rights,

Inc. v. California Dept. of Transportation, 249 F.R.D. 334,

348 (N.D. Cal. 2008) (holding same). Thus, for all of those

reasons, the court concludes that defendants[’] arguments

regarding the disagreement between class members over the

legal issue of whether XRP qualifies as a “security” does not

defeat adequacy.

Id. at *3–4 (alteration in original).

This reasoning is equally applicable here, and thus, Defendant Koutoulas’s

argument does not defeat adequacy. Therefore, considering the named Plaintiffs

are qualified and no substantial conflict of interest is present, the Court finds that

Plaintiffs meet the adequacy element. Valley Drug, 350 F.3d at 1189.

b. Adequacy of Named Plaintiffs’ Counsel

Class counsel will adequately represent the class if they are “qualified,

experienced, and generally able to conduct the putative litigation.” Griffin, 755

F.2d at 1533. This requires the court to evaluate a number of factors, including

counsel’s knowledge and experience with class action litigation, counsel’s

knowledge and experience with the substantive law governing the class’s claims,

the resources available to counsel to pursue the class’s claims, the quality of

counsel’s litigation efforts so far, and any other relevant factor speaking to

counsel’s ability to represent the class’s legal interests. See William B. Rubenstein,

Newberg on Class Actions, §§ 3:73–3:79 (5th ed. 2011).

Plaintiffs present that Class counsel “are experienced in the areas of class

actions and securities litigation.” (Doc. 373, p. 22). Plaintiffs cite to the firms’

resumes displaying Class counsel’s skills and knowledge. (Id. (citing Docs. 320-5,

320-6)). In response, Defendant Koutoulas raises a series of arguments that have

been previously addressed by the Court or are “perfunctory and underdeveloped,”

and as such, the Court need not address these arguments. (Doc. 403, pp. 19–20);

see U.S. Steel Corp., 495 F.3d at 1287 n. 13.

The Court finds that the putative Class counsel are sufficiently qualified to

represent the Class. Counsel have litigated several federal cases nationally and

have been appointed lead or co-lead counsel in multiple class actions. (See Docs.

320-5, 320-6). Additionally, counsel are experienced in securities litigation. (Id.).

Therefore, putative Class counsel are “qualified, experienced, and generally able”

to represent the Class’s legal interests. See Griffin, 755 F.2d at 1533.

D. Rule 23(b)

In addition to satisfying standing and Rule 23(a)’s four prerequisites, a

plaintiff must show that the putative class they wish to certify falls into at least one

of Rule 23(b)’s class types. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614

(1997); FED. R. CIV. P. 23(b). Plaintiffs seek to proceed as a Rule 23(b)(3) class.

Rule 23(b)(3) permits certification of a class where: (1) common questions

of law or fact predominate over questions affecting class members individually,

and (2) a class action is the superior method for resolving these common questions.

FED. R. CIV. P. 23(b)(3). These two elements are referred to as “predominance” and

“superiority,” respectively, and the Court discusses them in turn.

1. Predominance

Predominance refers to the class’s cohesion as a whole and examines

whether adjudication of members’ individual interests on a classwide basis would

be appropriate. Amchem, 521 U.S. at 623. In determining predominance, the

district court assesses the issues of law and fact likely to arise during the litigation

and weighs whether issues common to the class predominate over issues which are

unique to each individual class member. Id. at 622–23, 623 n.18. Ultimately,

predominance revolves around the quality, rather than the quantity, of the class

members’ shared interests. Stillmock v. Weis Mkts., Inc., 385 F. App’x 267, 272

(4th Cir. 2010). Where the litigation is defined by individualized inquiries

regarding the defendant’s possible liability to each class member, predominance is

lacking and certification should be denied. Sacred Heart Health Sys., Inc. v.

Humana Mil. Healthcare Servs., Inc., 601 F.3d 1159, 1170 (11th Cir. 2010).

However, where the class members seek answers to the same questions and those

answers would “have a direct impact on every class member’s effort to establish

liability,” common issues predominate and certification should be granted. Id.

(internal quotation marks and emphasis omitted) (quoting Vega, 564 F.3d at

1270).

Plaintiffs generally argue that the common questions of law and fact

predominate over any individual issues. (See Doc. 373, pp. 17–19); see also supra

Section III.C.3. Defendants do not dispute the predominance element. (See Doc.

403).

a. Predominance: Section 12(a)(1) Claims

Regarding Plaintiffs’ Section 12(a)(1) claims, the Court agrees with Plaintiffs

that the common questions of law and fact predominate over any individualized

inquiries. (See Doc. 373, pp. 17–19). To establish liability under Section 12(a)(1),

Plaintiffs must prove that: (1) Defendant Koutoulas “sold or offered to sell

securities; (2) no registration statement was in effect as to the securities; and (3)

interstate transportation or communication and the mails were used in connection

with the sale or offer of sale.” See Rensel v. Centra Tech, Inc., No. 17-24500-Civ-

Scola, 2021 WL 4134984, at *10 (S.D. Fla. Sept. 20, 2021) (citing SEC v. Levin, 849

F.3d 995, 1001 (11th Cir. 2017)). These elements do not raise any individualized

inquiries, and thus, “the same evidence will suffice for each [class] member” in

answering these inquiries. See Brown, 817 F.3d at 1234. Accordingly, the

predominance element of Rule 23(b)(3) is satisfied. See Rensel, 2021 WL 4134984,

at *10 (collecting cases); see Amchem, 521 U.S. at 625 (“Predominance is a test

readily met in certain cases alleging . . . securities fraud.” (citation omitted)).

b. Predominance: Unjust Enrichment Claims

Plaintiffs fail to provide any argument as to predominance for their unjust

enrichment claims. (See Doc. 373). At most, Plaintiffs reiterate their arguments as

to Rule 23(a)(2)’s commonality requirement, but Rule 23(b)(3)’s predominance

inquiry “is far more demanding.” See Vega, 564 F.3d at 1270 (quotations and

citations omitted) (explaining the stark difference between commonality and

predominance).

Even if Plaintiffs properly provided argument, the Court would still be

unable to find that Plaintiffs satisfied the predominance requirement for their

unjust enrichment claims. Plaintiffs seek to certify a nationwide class for their

unjust enrichment claims that arise under state law. (Doc. 245, ¶¶ 404–07, 416–

19). Considering these unjust enrichment claims could implicate the law of all fifty

states, “it falls to the plaintiff to demonstrate the homogeneity of different states’

laws, or at least to show that any variation they contain is manageable.” Sacred

Heart, 601 F.3d at 1180 (citation omitted). Plaintiffs make no attempt to identify

what state laws apply to the potential Class members’ unjust enrichment claims,

nor do they identify whether there is a homogeneity or manageable variation

among such states’ laws.15 See Birmingham v. RoFx.net, No. 21-cv-23472, 2023

WL 3378177, at *3–5 (S.D. Fla. May 11, 2023).16 Absent this information, the Court

is unable to determine whether “the legal questions governing each class members’

claims are predominantly subject to generalized proof.” See id. at *3.

Consequently, the Court cannot adequately assess predominance, nor can it grant

15 In the Third Amended Complaint, Plaintiffs brought their unjust enrichment claims under

Florida common law. (Doc. 245, ¶¶ 404–07, 416–19). However, to date, Plaintiffs have not

established that Florida law applies to its nationwide class. Specifically, Plaintiffs have not

shown an absence of actual conflicts amongst the relevant states’ laws, nor have they provided

the Court with a choice-of-law analysis. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797,

816–23 (1985). Merely pleading the claims under forum state law is insufficient. See id. at 820

(“A plaintiff’s desire for forum law is rarely, if ever controlling . . . ‘if a plaintiff could choose

the substantive rules to be applied to an action . . . the invitation to forum shopping would be

irresistible.’” (citation omitted)).

16 In Birmingham, the court addressed a similar situation like the one at issue here. See 2023

WL 3378177, at *3–5. The plaintiffs moved to certify a global class for common law fraud and

unjust enrichment. Id. at *3. Further, the five named plaintiffs came from four different states,

and the underlying scheme was conducted entirely online. Id. at *4. The Birmingham court

denied class certification because the plaintiffs failed to satisfy predominance under Rule

23(b)(3). Id. In doing so, the Birmingham court explained that:

Accordingly, it is likely that the potential class members’ claims are

governed by many different jurisdictions’ laws, but the Court is

unable to make this determination because the Plaintiffs’ briefing

ignores all aspects of the relevant inquiry: for example, it does not

suggest grouping the potential class members by jurisdiction,

address whether the Court would need to conduct a choice of law

analysis on what law might apply to the potential claims, or even

indicate in what state the majority of claims may originate.

Id. (citing Simmons v. Ford Motor Co., 592 F. Supp. 3d 1262, 1296 (S.D. Fla.

2022)).

class certification on Plaintiffs’ unjust enrichment claims. See, e.g., Vega, 564 F.3d

at 1278 (“[P]redominance . . . is perhaps the central and overriding prerequisite for

a Rule 23(b)(3) class.”); Sacred Heart, 601 F.3d at 1180 (reversing a district court’s

certification of a class because its lack of analysis of the variations in applicable

state law resulted in “a critical legal deficiency—insufficient evidence of

predominant common legal issues”); Parker v. Perdue Foods, LLC, No. 5:22-cv-

00268, 2024 WL 3993855, at *8 (N.D. Ga. Aug. 29, 2024) (“If a plaintiff fails to

carry his or her burden of demonstrating similarity of state laws, then certification

should be denied.” (collecting cases)); Simmons v. Ford Motor Co., 592 F. Supp.

3d 1262, 1296 (S.D. Fla. 2022) (citing Sacred Heart, 601 F.3d at 1180) (denying

class certification as to an unjust enrichment claim because plaintiffs failed to

identify the state law variations and whether such variations could be effectively

managed).

In sum, Plaintiffs satisfy Rule 23(b)(3)’s predominance requirement for

their Section 12(a)(1) claims, but not for their unjust enrichment claims.

Considering the lack of predominance as to Plaintiffs’ unjust enrichment claims,

the Court denies class certification for these claims. Valley Drug, 350 F.3d at 1187

(“The burden of proof to establish the propriety of class certification rests with the

advocate of the class.”). The Court thus limits the remainder of its discussion to

Plaintiffs’ Section 12(a)(1) claims.

2. Superiority

Superiority refers to whether the class action mechanism “would be the best

or the fairest way” to resolve the parties’ dispute when compared to available

alternatives. Ungar v. Dunkin’ Donuts of Am., Inc., 68 F.R.D. 65, 148 (E.D. Pa.

1975), rev’d on other grounds, 531 F.2d 1211 (3d Cir. 1976), cert. denied, 429 U.S.

823 (1976). Determining superiority requires the court to evaluate the four factors

enumerated by Rule 23(b)(3). See Vega, 564 F.3d at 1278. These four factors are:

(1) “the class members’ interests in individually controlling the prosecution or

defense of separate actions”; (2) “the extent and nature of any litigation concerning

the controversy already begun by or against class members”; (3) “the desirability

or undesirability of concentrating the litigation of the claims in the particular

forum”; and (4) “the likely difficulties in managing a class action.” FED. R. CIV. P.

23(b)(3)(A)–(D). If a district court reaches the manageability factor, it may

consider the administrative feasibility of providing notice to absent class members

as part of its Rule 23(b)(3)(D) calculus. Cherry, 986 F.3d at 1304. If manageability

presents particularly thorny issues to providing the required class notice, courts

have discretion not to certify a class based on the circumstances of the case even

though the administrative feasibility of ascertaining absent class members will

“rarely, if ever, be dispositive.” Id. at 1304–05.

“The class[ ]action device was designed as ‘an exception to the usual rule that

litigation is conducted by and on behalf of the individual named parties only.’” Gen.

Tel. Co. of the S.W. v. Falcon, 457 U.S. 147, 155 (1982) (quoting Califano v.

Yamasaki, 442 U.S. 682, 700–01 (1979)). Class actions mitigate against the

unlikelihood that individuals will pursue small claims “by aggregating the

relatively paltry potential recoveries into something worth someone’s . . . labor.”

Amchem, 521 U.S. at 617 (quoting Mace v. Van Ru Credit Corp., 109 F.3d 338, 344

(1997)). Ultimately, the superiority determination will be evaluated “in

comparative terms . . . because the superiority requirement of Rule 23(b)(3) turns

on whether a class action is better than other available methods of adjudication.”

Cherry, 986 F.3d at 1304.

Plaintiffs maintain that this suit is superior to other available methods

because most Class “members made modest purchases of LGBCoin.” (Doc. 373, p.

20). Plaintiffs thus posit that “the ‘realistic alternative’ to this [C]lass action is not

thousands of individual suits, ‘but zero individual suits, as only a lunatic or a

fanatic sues for $30.’” (Id. (quoting Carnegie v. Household Int’l, 376 F.3d 656, 661

(7th Cir. 2004))). Defendant Koutoulas asserts that this action is not superior to

the lawsuit LetsGoBrandon.com Foundation has filed against NASCAR, pending

in the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County,

Florida. See LetsGoBrandon.com Found. v. Nat’l Ass’n for Stock Car Racing, LLC,

No. 2023-002831-CA-01 (the “state court case”); (Doc. 403, pp. 9–13).

Defendant Koutoulas also contends that providing notice to the Class will be

difficult given the nature of cryptocurrency. (Doc. 403, p. 13).

In considering the Rule 23(b)(3) factors, the Court finds that trying this case

as “a class action is superior to other available methods for fairly and efficiently

adjudicating the controversy.” First, litigating each individual claim separately

would not be cost effective given the comparatively small payout of each claim.

(Doc. 374, ¶ 12 (“Many of the individuals damaged would have insufficient claims

to justify individual litigation as plaintiffs.”)). Such a sum would not likely cover

the legal costs necessary to secure a favorable outcome; the economics of the case

thus make it improbable that individual absent class members have an interest in

directing its prosecution. (See id.); see also Kron v. Grand Bah. Cruise Line, LLC,

328 F.R.D. 694, 702 (S.D. Fla. 2018); FED. R. CIV. P. 23(b)(3)(A). In short, this case

is a prototypical example of the benefits of aggregate litigation.

Second, the Court does not find “any litigation concerning the controversy

already begun by or against class members.” FED. R. CIV. P. 23(b)(3)(B). While

Defendant Koutoulas argues that the state court case defeats superiority, he

operates under a mistaken understanding of Rule 23(b)(3)(B). (Doc. 403, pp. 9–

13). Rule 23(b)(3)(B) pertains to actions “already begun by or against class

members.” The state court case was brought by non-party LetsGoBrandon.com

Foundation, which is an entity specifically excluded from the Class here. (See Doc.

373, p. 6).

Even if the state court case was brought by Class members, Defendant

Koutoulas still fails to demonstrate how it threatens the superiority of this Class

action. (Doc. 403, p. 10). Importantly, Rule 23(b)(3)(B) “is intended to serve the

purpose of assuring judicial economy and reducing the possibility of multiple

lawsuits.” Zinser v. Accufix Rsch. Inst., Inc., 253 F.3d 1180, 1191 (9th Cir. 2001)

(quoting 7A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE,

FEDERAL PRACTICE AND PROCEDURE § 1780 (2d ed. 1986)). Specifically, the Court is

charged with assessing whether “a clear threat of multiplicity and a risk of

inconsistent adjudications” exist. Id. This Class action pertains to Plaintiffs’ claims

for the sale of unregistered securities against Defendant Koutoulas. (Doc. 245, ¶¶

369–81). The state court case pertains to the following claims against NASCAR:

defamation, defamation by implication, promissory estoppel, and breach of

contract. See LetsGoBrandon.com Found. v. Nat’l Ass’n for Stock Car Racing,

LLC, No. 2023-002831-CA-01. The Court struggles to find how the state court case

presents a “clear threat of multiplicity” or “a risk of inconsistent adjudications,”

and Defendant Koutoulas does not provide any explanation or evidence to reach

such a finding. (See Doc. 403). At most, Defendant Koutoulas—in a conclusory

fashion—alleges a factual connection, but ultimately, as Defendant Koutoulas

concedes, Plaintiffs’ “surviving claim[] [is] separate from the Foundation’s claims”

in the state court case. (Id. at p. 10). Therefore, the Court rejects Defendant

Koutoulas’s argument that the state court case obviates the need for class

certification.

Third, because this litigation has been ongoing for several years before this

Court, this forum is desirable. (See Doc. 389 (denying Defendants’ Motion to

Dismiss and/or Transfer Venue for Forum Non Conveniens)). Moreover, neither

party proposes that another forum would be a more favorable venue for the case at

this stage in the proceedings. See FED. R. CIV. P. 23(b)(3)(C).

Fourth, while providing notice to the Class and conducting an efficient and

fair trial will present some manageability issues, none of them are so

insurmountable to warrant not certifying the Class. FED. R. CIV. P. 23(b)(3)(D). To

start, Plaintiffs present a straightforward process—which Defendant Koutoulas

never directly undercuts—that will be used to notify the class in an administratively

feasible manner. (Doc. 373, pp. 9–10; see Doc. 403). To demonstrate this

straightforward process, Plaintiffs provide a sample notice plan approved in

Rensel, a cryptocurrency class action, and an expert declaration. (See Docs. 379-9,

379-10; see also Doc. 375, ¶¶ 53–56). To that end, the slight difficulties that may

arise in this action are insufficient to show that this Class action is not superior to

other available methods. The Court thus finds that Rule 23(b)(3) superiority is

satisfied.

In sum, Plaintiffs establish the propriety of class certification as to their

Section 12(a)(1) claims under Rule 23(a) and Rule 23(b)(3). However, as to their

unjust enrichment claims, Plaintiffs fail to satisfy Rule 23(b)(3)’s predominance

requirement, and thus, class certification is improper as to these claims. The Court

therefore finds that partial certification under Rule 23(c)(4) is warranted here. See

Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 441 (4th Cir. 2011)

(“[S]ubsection 23(c)(4) should be used to separate ‘one or more’ claims that are

appropriate for class treatment, provided that within that claim or claims (rather

than within the entire lawsuit as a whole), the predominance and all other

necessary requirements of subsections (a) and (b) of Rule 23 are met.” (citation

omitted)); see also Kalow & Springut, LLP v. Commence Corp., No. 07–3442, 2011

WL 3625853, at *3–4 (D.N.J. Aug. 15, 2011) (granting partial certification for a

single cause of action because the other claim failed Rule 23(b)(3) predominance

for a lack of choice-of-law analysis).

IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED as follows:

1. Plaintiffs’ Motion for Class Certification, Appointment of Class

Representatives, and Appointment of Class Counsel (Doc. 373) is

GRANTED IN PART AND DENIED IN PART.

2. The Court hereby certifies a Rule 23(b)(3) Class with respect to

Plaintiffs’ Section 12(a)(1) claims only. The Class consists of

the following: “All persons who, between November 2,

2021, and March 15, 2022, purchased LGBCoin.”

3. Plaintiffs Eric De Ford, Sandra Bader, and Shawn R. Key are hereby

certified as Representatives of the Class.

4. Counsel from Zigler Law Group and Scott + Scott are hereby certified

as Class counsel pursuant to Rule 23(g).

5. On or before April 11, 2025, the parties shall jointly file for approval

by the Court a putative notice to Class members. Alternatively, if the

parties cannot agree on a putative notice, Plaintiffs shall file a putative

notice on or before April 11, 2025, and Defendant Koutoulas shall file

any objections within three (3) days of the filing of Plaintiffs’ putative

notice.

DONE AND ORDERED in Orlando, Florida on March 28, 2025.

Qaaew

PAUL G.

UNITED STATES*ISTRICT JUDGE

Copies furnished to:

Counsel of Record

Unrepresented Parties