M.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 25-21008-CIV-DIMITROULEAS/D’ANGELO

M. M., et al.,

Plaintiffs,

vs.

VITROLIFE, INC., et al.,

Defendants.

________________________/

OMNIBUS REPORT AND RECOMMENDATION

THIS CAUSE is before the Court on three motions. First, Defendants Igenomix USA,

Inc. and Vitrolife, Inc. filed Motions to Compel Arbitration on June 23, 2025 (DE 26, 27).1 On

August 6, 2025, Plaintiffs M.M., Katie Herrero, Jaime Magnetico-Walsh, Y.C., Soupharack

Vannasing, Evette Smith, and Courtney Zieller, individually and on behalf of all others similarly

situated, filed their response in opposition (DE 36), and Defendants Igenomix USA, Inc. and

Vitrolife, Inc. replied on August 22, 2025 (DE 39, 40). Second, Defendant Vitrolife AB filed a

Motion to Dismiss for Lack of Personal Jurisdiction and/or to Compel Arbitration on October 24,

2025 (DE 49).2 Plaintiffs filed their response in opposition (DE 54), and Defendant Vitrolife AB

filed its reply on November 14, 2025 (DE 56, 57). Having considered the Parties’ arguments, the

relevant legal authorities, and the pertinent portions of the record, and being otherwise fully

1 On June 24, 2025, these Motions were referred the undersigned Magistrate Judge for an

evidentiary hearing if necessary and appropriate disposition or report and recommendation (DE

28).

2 On October 27, 2025, this Motion was referred to the undersigned Magistrate Judge for an

evidentiary hearing if necessary and appropriate disposition or report and recommendation (DE

51).

advised in the premises, for the reasons stated below, it is respectfully recommended that

Defendants Igenomix USA, Inc. and Vitrolife, Inc.’s Motion to Compel Arbitration be

GRANTED IN-PART and DENIED IN-PART. It is also respectfully recommended that

Defendant Vitrolife AB’s Motion to Dismiss be GRANTED for lack of personal jurisdiction.

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

On March 4, 2025, Plaintiffs filed their proposed class action Complaint “as a result of the

false, deceptive, unfair, and misleading advertising marketing, and promotion of Defendants’

preimplantation genetic testing for aneuploidy” (“PGT-A testing”) (DE 1 ¶ 1).3 PGT-A testing is

marketed and sold by Defendants as an add-on to the in vitro fertilization process (“IVF”) to screen

embryos for chromosomal abnormalities (id. ¶ 9). “The IVF process begins with medication taken

by women to stimulate the follicles to create several mature eggs for collection. Once the eggs are

retrieved from the ovaries, they are then fertilized . . . with sperm to create embryos. If the embryos

reach the blastocyst stage, they are then ready for implantation to see if they will result in a

pregnancy” (id. ¶ 8). Essentially, “IVF clinics perform a biopsy and send a small number of cells

from the embryo to [the company performing the] PGT-A testing and provide results to the

customer and their clinic” (id. ¶ 9). The results determine which embryos are best suited for

implantation and which embryos are abnormal and not suited for implantation (id.).

3 There are typographical errors throughout the Complaint. For example, the Counts are not

consecutively numbered, as there are two Counts labeled as Count Nine (Compare DE 1 at 86 with

id. at 88). There are also two Counts labeled as Count Thirteen (compare id. 85 with id. at 97).

Additionally, the paragraphs do not continue consecutively—the top of page seventy-seven

contains two paragraphs numbered 259 and 260, and then the next paragraph is numbered 200 (id.

at 77-78). On page seventy-nine, the paragraphs are numbered starting with 261, even though the

previous paragraph is numbered 211. The inconsistent numbering can be found in several parts of

the Complaint, making it difficult to identify specific paragraphs and counts by number.

According to the Complaint, Igenomix USA, Inc. (“Igenomix”) operates a clinical

laboratory and is a Florida corporation (id. ¶¶ 8, 9). Vitrolife AB acquired Igenomix in 2021 (id.

¶ 10). Vitrolife AB, Igenomix, and Vitrolife, Inc., collectively referred to in the Complaint as

“Vitrolife,” “offer[] ‘pioneering genetic tests to help reproductive health professionals to diagnose

and treat their patients at the preconception, pre-implantation and pre/postnatal phases of their

reproductive journey with one aim: a healthy baby’” (id. ¶ 16). Plaintiffs allege that Vitrolife

falsely markets and sells PGT-A testing as a “proven, accurate, and reliable method to decrease

the chance of miscarriage and increase the chance of giving birth to a healthy baby” (id. ¶ 2).

Vitrolife allegedly markets its PGT-A testing to people pursuing IVF to improve pregnancy rates,

increase implantation rates, increase delivery rates, increase the chances of having a healthy baby,

decrease the rate of miscarriages, while also “being superior to all others’ testing” (id. ¶ 10).

Indeed, Plaintiffs contend that Defendants “market their PGT-A testing as being more than 98-

99% accurate” (id.). As a result, people pursuing IVF rely on these statements to purchase PGT-

A testing from Defendants (id.). However, “[s]tudies show that when looking at clinic pregnancy,

miscarriage, or live-birth rates, there is no difference between cycles utilizing PGT-A and cycles

not utilizing PGT-A. Studies also show the accuracy rating for PGT-A is significantly lower than

98 to 99% accurate” (id. ¶ 11). Plaintiffs claim that they purchased Vitrolife’s PGT-A testing

based on Vitrolife’s allegedly “false and deceptive marketing and advertising statements, and

material omissions,” causing them to suffer economic loss (id. ¶ 23).

The Complaint details the IVF process and the evolution of PGT-A testing (id. ¶¶ 25-110).

Plaintiffs claim that despite scientific advancements finding the value of PGT-A testing

inconclusive, Igenomix “materially omitted to inform their customers and potential customers of

this important pronouncement by the leading organization for reproductive medicine” (id. ¶ 111).

Rather, Igenomix “continued to promote PGT-A to IVF patients, including by making the specific

affirmative misrepresentations” about the effectiveness and benefits of the testing (id. ¶ 115).

Vitrolife allegedly “continued to advertise, market, and affirmatively misrepresent non-existent

benefits of PGT-A that are not supported by science to vulnerable consumers, while at the same

time omitting material information concerning the efficacy of PGT-A [testing]” without

conducting scientific studies (id. ¶¶ 127, 153, 176). According to Plaintiffs, by means of the

statements and omissions set forth in the Complaint, Vitrolife’s “false and misleading advertising

and marketing statements . . . have played a key role in driving up the use of PGT-A testing in the

United States” (id. ¶¶ 184-86).

Plaintiffs further claim that Vitrolife “provide[s] a Preimplantation Genetic Testing for

Aneuploidy Consent Form (“Consent Form”) that all customers are asked to sign prior to obtaining

their PGT-A testing” (id. ¶ 197). The Consent Forms purportedly contain false statements and

misrepresentations, which are seen and relied upon by Plaintiffs in deciding to purchase PGT-A

testing (id. ¶ 198). “These statements in the Consent Form mirror the misleading and false

marketing, promotion, and advertising discussed above, including that (a) PGT-A testing is 98%

accurate, (b) PGT-A testing increases the chance of pregnancy, (c) PGT-A testing leads to a higher

chance of a healthy pregnancy, and (d) PGT-A testing reduces the risk of miscarriage” (id. ¶ 199).

As a result, Plaintiffs “were injured at the time of sale and would not have purchased PGT-A from

Defendants had they been told the truth at the time of sale concerning the body of scientific

knowledge about PGT-A and each of the detailed misstatements and omissions . . .” (id. ¶ 222).

Based on these allegations, Plaintiffs bring sixteen claims: (1) Violations of Massachusetts

Consumer Protection Act in Count One, (2) Violations of Pennsylvania Unfair Trade Practices and

Consumer Protection Law in Count Two, (3) Violations of Florida Deceptive and Unfair Trade

Practices Act in Count Three, (4) Violations of Maryland Consumer Protection Act in Count Four,

(5) Violations of Connecticut Unfair Trade Practices Act in Count Five, (6) Violations of New

York Consumer Protection Section 349 in Count Six, (7) Violations of New York Consumer

Protection Section 350 in Count Seven, (8) Violations of California Unfair Competition Law under

the Unfair and Fraudulent Prongs in Count Eight, (9) Violations of California Unfair Competition

Law under the Unlawful Prong in Count Nine, (10) Violations of California Consumer Legal

Remedies Act in Count Ten, (11) Breach of the Implied Warranty of Merchantability in Count

Eleven, (12) Breach of the Implied Warranty of Usability in Count Twelve, (13) Fraud in Count

Thirteen, (14) Fraud by Concealment in Count Fourteen, (15) Breach of Express Warranty in

Count Fifteen, and (16) Unjust Enrichment in Count Sixteen (id. ¶¶ 201-377).4

II. DISCUSSION

On June 23, 2025, Defendants Igenomix and Vitrolife, Inc. filed their Motions to Compel

Arbitration, contending that each Plaintiff signed the Consent Form when they received their PGT-

A testing, and the Consent Form contains an arbitration provision (DE 26 at 5-8). Igenomix and

Vitrolife, Inc. argue that Plaintiffs’ claims fall within the scope of the arbitration provision in the

Consent Form, which is also signed by Igenomix (id. at 9). Vitrolife, Inc., on the other hand, is

not a signatory to the Consent Form; however, Vitrolife, Inc. argues that it can compel arbitration

through equitable estoppel (DE 40 at 7). In addition, Defendant Vitrolife AB filed its Motion to

Dismiss on October 24, 2025, arguing that Plaintiffs have not established that the Court has

personal jurisdiction over it, as both general and specific jurisdiction are lacking (DE 49 at 4-17).

Alternatively, Vitrolife AB seeks to compel arbitration for the same reasons that are set forth in its

co-defendants’ motions and argues that the Complaint is a shotgun pleading, as it impermissibly

4 Counts Nine through Sixteen are mislabeled in the Complaint.

pleads facts collectively without specifying which Defendants engage in the alleged conduct (id.

at 17-20).5

As to Igenomix and Vitrolife, Inc.’s Motion to Compel Arbitration, Plaintiffs maintain that

their claims are not governed by the arbitration clause in the Consent Forms and that as non-

signatories to the Consent Forms, Vitrolife, Inc. and Vitrolife AB cannot compel arbitration (DE

36 at 5). Specifically, Plaintiffs argue that their claims are outside the scope of the arbitration

agreement, because their claims do not arise from the services that Defendants provided to

Plaintiffs (id. at 7-13). Instead, their claims stem from the purportedly false and deceptive

marketing and advertising Defendants used to promote PGT-A testing before any services were

provided (id.). Regarding Vitrolife AB’s Motion to Dismiss for Lack of Personal Jurisdiction,

Plaintiffs suggest that personal jurisdiction is proper under Sections 48.193(1)(a)(1), (2), and (6)

of Florida’s long-arm statute based on Vitrolife AB’s role in the marketing and promotion of the

PGT-A testing performed by Igenomix (DE 54 at 4-7). Lastly, Plaintiffs assert that the Complaint

is not a shotgun pleading, as collective pleading of allegations against Defendants who engaged in

the same conduct is permissible (DE 36 at 10-20).

A. Defendant Vitrolife AB’s Motion to Dismiss for Lack of Personal Jurisdiction

Vitrolife AB contends the Court does not have personal jurisdiction over it, because

Plaintiffs have not shown that Vitrolife AB is at home in Florida or involved in any activities in

Florida (DE 49 at 5-17). Vitrolife AB argues that Plaintiffs’ allegations discuss its business

5 Vitrolife Group also filed a Motion to Dismiss for Lack of Personal Jurisdiction and/or to Compel

Arbitration on October 24, 2025 (DE 50). After representing to the Court at the January 20, 2026

hearing that they did not intend to pursue their claims against Vitrolife Group, Plaintiffs filed a

Notice of Voluntary Dismissal Without Prejudice on January 22, 2026, dismissing their claims

against Vitrolife Group (DE 68), and the Court dismissed Vitrolife Group from this action without

prejudice on January 22, 2026 (DE 69).

generally but do not evidence specific contacts with Florida (id. at 5). As a result, Vitrolife AB

maintains there is no reason to conclude it is at home in Florida through continuous and systematic

activities (id. at 6).

In opposition, Plaintiffs claim personal jurisdiction over Vitrolife AB exists under both

general and specific jurisdiction provisions of the Florida long-arm statute (DE 54 at 4-7).

According to Plaintiffs, Vitrolife AB does not maintain a separate existence from Igenomix, which

is headquartered in Miami, Florida, sharing facilities, offices, assets, services, and personnel (id.

at 4-5). Moreover, Plaintiffs argue that since Vitrolife AB acquired Igenomix, Vitrolife AB has

controlled Igenomix and participated in the marketing and sales of its PGT-A testing, establishing

continuous and systematic activities in Florida (id. at 4). Plaintiffs further argue that through its

false and deceptive advertising of PGT-A testing, Vitrolife AB committed a tort in Florida, and

the injuries and harm based on Vitrolife AB’s supposed misleading and deceptive marketing have

been felt by Florida residents (id. at 9). Plaintiffs also claim that subjecting Vitrolife AB to suit in

Florida comports with traditional notions of fair play and substantial justice, such that the exercise

of personal jurisdiction over Vitrolife AB does not offend due process (id. at 8-9).

1. Legal Standard for Personal Jurisdiction

“As a general rule, courts should address issues relating to personal jurisdiction before

reaching the merits of a plaintiff’s claims.” Republic of Panama v. BCCI Holdings (Luxembourg)

S.A., 119 F.3d 935, 940 (11th Cir. 1997) (citation omitted). “The determination of personal

jurisdiction over a nonresident defendant requires a two-part analysis.” Madara v. Hall, 916 F.2d

1510, 1514 (11th Cir. 1990) (citation omitted). “First, we must examine the jurisdictional issue

under the state long-arm statute.” Cable/Home Commc’n Corp. v. Network Prods., Inc., 902 F.2d

829, 855 (11th Cir. 1990) (citation omitted). A defendant can be subject to personal jurisdiction

under Florida’s long-arm statute in two ways: (1) specific jurisdiction, and (2) general jurisdiction.

Carmouche v. Tamborlee Mgmt., Inc., 789 F.3d 1201, 1203-04 (11th Cir. 2015) (citing FLA. STAT.

§ 48.493(1)(a), (2)). “The reach of the [Florida long-arm] statute is a question of Florida law.

[F]ederal courts are required to construe [such law] as would the Florida Supreme Court.” United

Techs. Corp. v. Mazer, 556 F.3d 1260, 1274 (11th Cir. 2009) (citation omitted). “If there is a basis

for the assertion of personal jurisdiction under the state statute, we next determine whether

sufficient minimum contacts exist to satisfy the Due Process Clause of the Fourteenth Amendment

so that maintenance of the suit does not offend ‘traditional notions of fair play and substantial

justice.’” Madara, 916 F.2d at 1514 (citation and quotation omitted).

“The district court must accept the facts alleged in the complaint as true, to the extent that

they are uncontroverted by the defendant’s affidavits.” Cable/Home Commc’n Corp., 902 F.2d at

855 (citation omitted). “Absent an evidentiary hearing on a motion to dismiss for want of personal

jurisdiction, the district court must first determine that the plaintiff has established a prima facie

case of personal jurisdictional over the nonresident defendant which is capable of withstanding a

directed verdict motion.” Abramson v. Walt Disney Co., 132 F. App’x 273, 275 (11th Cir. 2005)

(citation omitted). “In making this determination, the district court must accept the plaintiff's

factual allegations, unless those allegations are contested by the defendant’s affidavits.” Id.

(citation omitted). “‘[S]pecific factual declarations within the affiant’s personal knowledge[]’ . . .

are sufficient ‘to shift to the Plaintiff[ ] the burden of producing evidence supporting jurisdiction.’”

Mazer, 556 F.3d at 1277. “The burden, however, does not shift back to the plaintiff when ‘the

defendant’s affidavits contain only conclusory assertions that the defendant is not subject to

jurisdiction.’” Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1350 (11th Cir. 2013).

“[W]here the plaintiff's complaint and the defendant's affidavits conflict, the district court must

construe all reasonable inferences in favor of the plaintiff.” Madara, 916 F.2d at 1514.

2. The Evidence and Allegations Set Forth by the Parties

Plaintiffs allege the following in the Complaint related to personal jurisdiction over

Vitrolife AB: “Igenomix and Vitrolife AB created Vitrolife Group,” “Vitrolife Group is located at

Box 9080, SE-400 92, Goteborg, Sweden,” and Igenomix is part of Vitrolife Group and Vitrolife,

Inc., which are collectively referred to as “Vitrolife” throughout the Complaint (DE 1 ¶¶ 11-13).6

In Plaintiffs’ view, since Vitrolife AB acquired Igenomix, it “has served no separate existence or

function outside of the corporate interests of Vitrolife, as evidenced by the companies’ respective

sharing of facilities, tools, employees, and offices” (id. ¶14). Further, since the acquisition,

“Vitrolife has dominated and controlled Igenomix in all respects, including marketing of its PGT-

A testing and decision-making” (id.). Vitrolife purportedly “employs several individuals across

the United States” and “advertises its products and services (including PGT-A testing) throughout

the world including the United States” (id. ¶ 15). “Vitrolife and Igenomix do not maintain

separateness when it comes to PGT-A testing and the marketing, promotion, and sale of testing[,]”

and they “collectively market, promote, advertise and sell PGT-A testing throughout the United

States and the world” (id. ¶¶ 19-20). Plaintiffs contend, “The injuries, damages and/or harm upon

which this action is based occurred or arose out of activities engaged in by Defendants within,

affecting, and emanating from, the state of Florida” (id. ¶ 23). Moreover, “Defendants have

engaged, and continue to engage, in substantial and continuous business practices in the state of

Florida and across the country” (id.).

6 Only one paragraph in the Complaint contains allegations specific to Vitrolife AB, which states

that it acquired Igenomix in 2021 (DE 1 ¶ 10). All other allegations are made collectively against

Vitrolife AB, Igenomix, and Vitrolife, Inc., or “Vitrolife.”

In support of its challenge to personal jurisdiction, Vitrolife AB submitted a declaration by

Erin Schardt (DE 53-2). In response, Plaintiffs submitted a declaration by Allison S. Freeman,

Esq. and the Vitrolife Group Interim Report, Q3 2025 (DE 55-1, 55-2). At the January 20, 2026

hearing, the Parties confirmed that they have not requested jurisdictional discovery and that there

are no direct factual challenges to the information contained in their respective declarations that

the Court must resolve by way of an evidentiary hearing. The Parties also agreed that the Court’s

inquiry proceeds under Florida law.

a. Declaration of Erin Schardt

Erin Schardt is the Senior Vice President and General Manager for Vitrolife, Inc. and

Igenomix (DE 53-2 ¶ 3, DE 67). Ms. Schardt states that she has knowledge about Vitrolife AB’s

“business operations and relationship with its subsidiaries” (DE 53-2 ¶ 3). Ms. Schardt attests,

“Vitrolife AB is a Public Swedish Entity” and a “pure Holding entity” that does not manufacture

products and does not do business in the United States (id. ¶¶ 4, 5). Additionally, Vitrolife AB is

a distinct entity that does not operate through Vitrolife, Inc. or Igenomix and does not sell or market

products in Florida (id. ¶¶ 6, 7). Vitrolife AB “does not exercise day-to-day operational control of

Igenomix, the entity that provided Plaintiffs with services” (id. ¶ 8). Ms. Schardt states, “Vitrolife

AB is not registered with the Florida Secretary of State to transact business in Florida; conducts

no business activities in Florida; does not own or lease any real property in Florida; maintains no

bank account in Florida; and maintains no office or employees in Florida” (id. ¶ 9). As a result,

Vitrolife AB has not paid any taxes to Florida, has not appointed an agent for service of process in

Florida, and has no office or place of business in Florida (id. ¶ 10). According to Ms. Schardt,

Vitrolife, Inc. and Igenomix do not act as an agent for Vitrolife AB in Florida (id. ¶¶ 11-12).

Lastly, “Vitrolife AB does not regularly conduct and/or directly solicit business in, engage in other

persistent courses of conduct in, and/or derive substantial revenue from services provided to

persons in the state of Florida” (id. ¶ 14).

b. Declaration of Allison S. Freeman

Allison S. Freeman, Esq., counsel for Plaintiffs, stated that she searched through registered

trademarks in the United States and found that Vitrolife Group is not a registered trademark with

the United States Patent and Trademark Office (DE 55-2 ¶¶ 2-3). However, there are two Vitrolife

registered trademarks—one is owned by Vitrolife Sweden AB, and Vitrolife, Inc. owns the other

(id. ¶¶ 4-6). Ms. Freeman also stated that Vitrolife Group did not appear as a registered fictious

name with the Florida Division of Corporations pursuant to Florida Statute § 865.09 (id. ¶¶ 7-8).

Plaintiffs also point to the following statements in the Vitrolife Group Interim Report, Q3 2025:

“Vitrolife Group refers to Vitrolife AB (publ) and all its subsidiaries” (DE 54 at 9). The 2025

Interim Report states “Igenomix is a brand of Vitrolife AB specializing in reproductive genetic

testing, and that its sales consist of genetic testing within its ‘Genetic products group’ performed

in the Americas” (id. at 4). Additionally, “Vitrolife and Igenomix USA[’s]” LinkedIn page states

they are a part of Vitrolife Group “with their headquarters in Miami, Florida” (id. at 4-5).

3. General Jurisdiction

Under Section 48.193(2) of Florida’s long-arm statute, a defendant “engaged in substantial

and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or

otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises

from that activity.” § 48.193(2), FLA. STAT. (2016). “A court may assert general jurisdiction over

foreign (sister-state or foreign-country) corporations to hear any and all claims against them when

their affiliations with the State are so ‘continuous and systematic’ as to render them essentially at

home in the forum State.” Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919

(2011) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 317 (1945)). “[O]nly a

limited set of affiliations with a forum will render a defendant amenable to all-purpose jurisdiction

there.” Daimler AG v. Bauman, 571 U.S. 117, 137 (2014). “With respect to a corporation, the

place of incorporation and principal place of business are paradigm . . . bases for general

jurisdiction.” Id. (citation and quotation omitted and cleaned up). Even if the defendant’s place

of incorporation and principal place of business are not in Florida, “[g]eneral personal jurisdiction

exists when a defendant ‘is engaged in substantial and not isolated activity within this state . . .

whether or not the claim arises from that activity.’” Louis Vuitton Malletier, S.A., 736 F.3d at

1352 (quoting § 48.193(2)). “General personal jurisdiction is based on a defendant’s substantial

activity in Florida without regard to where the cause of action arose.” Id. (citation omitted).

Plaintiffs’ arguments regarding the Court’s general jurisdiction over Vitrolife AB are

unavailing. At the outset, Plaintiffs’ unrebutted allegations in the Complaint alone may establish

the exercise of personal jurisdiction over Vitrolife AB; but, Vitrolife AB provided Ms. Schardt’s

declaration, which directly contradicts Plaintiffs’ jurisdictional allegations. For instance, Plaintiffs

claim that Vitrolife AB does not maintain a separate corporate identity from its subsidiary, Florida-

based Igenomix. “[A] foreign parent corporation is not subject to the jurisdiction of a forum state

merely because a subsidiary is doing business there.” Meier ex rel. Meier v. Sun Int’l Hotels, Ltd.,

288 F.3d 1264, 1272 (11th Cir. 2002). Rather, “[c]ourts exercise general personal jurisdiction over

the foreign company defendant when that defendant has operational control over its subsidiary. . .

. The level of control over the subsidiary must be ‘high and very significant,’ and if there is

a ‘semblance’ of independence from the parent company, jurisdiction will not attach.” SX

Holdings, LLC v. iContainers USA, Inc., No. 22-CIV-20824, 2025 WL 901245, at *3 (S.D. Fla.

Mar. 25, 2025) (citations omitted). Ms. Schardt’s declaration states that although Igenomix is a

subsidiary of Vitrolife AB, they are distinct entities, and Vitrolife AB does not exercise day-to-

day operational control of Igenomix. She further states that Igenomix does not act as an agent of

Vitrolife AB in Florida.

Similarly, Plaintiffs allege that Vitrolife AB is directly involved in the marketing and sales

of Igenomix’s PGT-A testing to Florida residents. Yet, Ms. Schardt’s declaration states that

Vitrolife AB does not sell or market products in Florida, conducts no business activities in Florida,

does not own or lease any real property in Florida, maintains no bank account in Florida, and

maintains no office or employees in Florida. Even more, Vitrolife AB has not paid any taxes to

Florida, does not regularly conduct and/or directly solicit business in Florida, and does not derive

substantial revenue from services provided to Florida residents. See Carmouche, 789 F.3d at 1205

(“A foreign corporation cannot be subject to general jurisdiction in a forum unless the

corporation’s activities in the forum closely approximate the activities that ordinarily characterize

a corporation’s place of incorporation or principal place of business.”). These statements are

diametrically opposed to Plaintiffs’ contentions and thus, operate as “specific factual denials that

challenge each and every factual allegation raised by [Plaintiffs].” Mazer, 556 F.3d at 1277.

By offering Ms. Schardt’s declaration to challenge the facts establishing jurisdiction, the

Court does not need to take Plaintiffs’ allegations in the Complaint as true. See Consol. Dev. Corp.

v. Sherritt, Inc., 216 F.3d 1286, 1291 (11th Cir. 2000) (explaining that in assessing personal

jurisdiction, the Court must accept the allegations as true “to the extent that they are uncontroverted

by the Defendant’s affidavits”). Ms. Schardt’s declaration was sufficient to shift the burden to

Plaintiffs to produce evidence demonstrating personal jurisdiction. In response, Plaintiffs argue

that “Vitrolife AB’s 2025 Interim Report for the Vitrolife Group states that it is a global provider

of genetic testing solutions, that Igenomix is a brand of Vitrolife AB specializing in reproductive

genetic testing, and that its sales consist of genetic testing within its ‘Genetic products group’

performed in the Americas” (DE 54 at 4). They also offer Ms. Freeman’s declaration, which does

not even mention Vitrolife AB, except to note that it owns a Vitrolife registered trademark. The

statements in the Interim Report, however, neither contradict Vitrolife AB’s lack of activity

directed at Florida nor show operational control over Igenomix. See Lee-Bolton v. Koppers Inc.,

No. 10-CIV-253, 2013 WL 11522040, at *5 (N.D. Fla. Sept. 9, 2013) (“The fact that a holding

company discusses profits, losses, and operations as joint operations with its subsidiary in press

releases, web sites, SEC filings or financial reports for the plain understanding of its shareholders,

giving the appearance that the companies are intertwined, does not alter their legal relationship or

demonstrate sufficient operational control to justify personal jurisdiction under an agency

theory.”); Yellow Pages Photos, Inc. v. Ziplocal, LP, No. 12-CIV-755, 2012 WL 5830590, at *5

(M.D. Fla. Nov. 16, 2012) (“As for the statements in the website, annual report, and press release,

courts do not rely on such statements as reliable evidence that the parent exercises ‘operational

control’ necessary to confer personal jurisdiction.”); Abramson, 132 F. App’x at 276 (“Evidence

of operational control is not satisfied where the foreign corporation’s policy statements merely

establish goals for its subsidiaries . . . .”). The Court is not persuaded that the statements in the

Interim Report or on a website are sufficiently specific or reliable to undercut the facts set forth in

Ms. Schardt’s declaration. Considering the uncontroverted evidence, Vitrolife AB does not engage

in substantial activity in Florida, through Igenomix or otherwise.

4. Specific Jurisdiction

Florida’s long arm statute provides several ways in which a Florida court can exercise

specific jurisdiction over a non-resident defendant:

A person, whether or not a citizen or resident of this state, who personally or

through an agent does any of the acts enumerated in this subsection thereby submits

himself or herself and, if he or she is a natural person, his or her personal

representative to the jurisdiction of the courts of this state for any cause of action

arising from any of the following acts:

1. Operating, conducting, engaging in, or carrying on a business or

business venture in this state or having an office or agency in this state.

2. Committing a tortious act within this state.

. . .

6. Causing injury to persons or property within this state arising out of

an act or omission by the defendant outside this state, if, at or about

the time of the injury, either:

a. The defendant was engaged in solicitation or service activities

within this state; or

b. Products, materials, or things processed, serviced, or

manufactured by the defendant anywhere were used or consumed

within this state in the ordinary course of commerce, trade, or use.

§§ 48.193(1)(a)(1), (2), (6). “Under Florida’s long-arm statute, a person is subject to the

jurisdiction of Florida courts ‘for any cause of action arising from’ certain listed conduct,

including: ‘operating, conducting, engaging in, or carrying on a business or business venture in

this state. . . .’” Villarino v. Joekel, No. 24-11124, 2025 WL 2329959, at *5 (11th Cir. Aug. 13,

2025) (quoting § 48.193(1)(a)(1) and cleaned up) (per curiam). Further, “an entity is subject to

specific personal jurisdiction if, among other things, it ‘commits a tortious act within this state.’”

World Media All. Label, Inc. v. Believe SAS, No. 24-12079, 2025 WL 2102017, at *2 (11th Cir.

July 28, 2025) (quoting § 48.193(1)(a)(2) and cleaned up)) (per curiam). Under Section

48.193(1)(a)(6), a Defendant may be subject to personal jurisdiction for “causing injury to persons

or property within this state arising out of an act or omission by the defendant outside this state, if,

at or about the time of the injury, . . . the defendant was engaged in solicitation or service activities

within this state.” Villarino, 2025 WL 2329959, at *5 (quoting § 48.193(1)(a)(6)) (cleaned up).

Vitrolife AB argues that Plaintiffs cannot demonstrate specific jurisdiction, because

Vitrolife AB did not commit a tort in Florida and does not do business in Florida (DE 49 at 4).

Vitrolife AB points out that Plaintiff did not specifically plead that Vitrolife AB committed a

tortious act that occurred in Florida; rather Plaintiff pled, “The injuries, damages and/or harm upon

which this action is based occurred or arose out of activities engaged in by Defendants within,

affecting, and emanating from, the state of Florida” (id. at 8 (quoting DE 1 ¶ 23) (emphasis

removed)). In Vitrolife AB’s view, there are no allegations showing its contacts in Florida, as

Vitrolife AB is a holding company that does not operate in Florida or have a presence in Florida

(id. at 8-11). Vitrolife AB claims that Plaintiffs’ IVF services “were rendered by Igenomix, not .

. . Vitrolife AB[,]” and Plaintiffs decision to “lump[] these two entities into ‘Defendants’ does not

change the source of their alleged torts” (id. at 12). Rebutting this argument, Plaintiffs claim there

is specific jurisdiction over Vitrolife AB, as the allegations demonstrate that Vitrolife AB

participated in the false and misleading sales of PGT-A testing, thereby committing a tort in Florida

(DE 54 at 5). Plaintiffs also contend that Vitrolife AB caused injury in Florida through the sale of

PGT-A testing, thereby establishing personal jurisdiction (id. at 7).

Notwithstanding Plaintiffs’ contentions, the Court does not have personal jurisdiction over

Vitrolife AB under Section 48.193(1)(a)(1). As Ms. Schardt’s declaration explains, and as

discussed infra, Vitrolife AB is a holding company that does not sell or market products in Florida

and does not do business in the United States (DE 53-2 ¶¶ 5-6). Similarly, Ms. Schardt’s

declaration states that Vitrolife AB does not exercise operational control over Igenomix, such that

Igenomix functions as the mere instrumentality of Vitrolife AB (id. ¶ 8). This evidence

demonstrates that based on its own contacts, Vitrolife AB did not operate or conduct its own

business for profit in Florida and did not maintain an office or employees in Florida. See Future

Tech. Today, Inc. v. OSF Healthcare Sys., 218 F.3d 1247, 1249 (11th Cir. 2000) (“In order to

establish that a defendant is ‘carrying on business’ for the purposes of the long-arm statute, the

activities of the defendant must be considered collectively and show a general course of business

activity in the state for pecuniary benefit.”). Vitrolife AB also did not serve as an agent of

Igenomix for purposes of personal jurisdiction. See Herederos De Roberto Gomez Cabrera, LLC

v. Teck Res. Ltd., 43 F.4th 1303, 1312 (11th Cir. 2022) (explaining that there was no personal

jurisdiction over a parent corporation, because the subsidiary was independent and not the parent’s

alter-ego). Therefore, personal jurisdiction under Section 48.193(1)(a)(1) is improper.

“Section 48.193(1)(a)(2) provides that a nonresident defendant is subject to personal

jurisdiction in Florida “for any cause of action arising from . . . [c]omitting a tortious act within

[Florida].” Louis Vuitton Malletier, S.A., 736 F.3d at 1353 (citation and emphasis omitted).

Plaintiffs allege, “Vitrolife AB falsely and misleadingly sold their PGT-A testing product, which

is a tortious act, throughout the United States, including to individuals in Florida which is where

testing was ultimately conducted when purchased by consumers” (DE 54 at 7 (citing DE 1 ¶¶ 8-9,

23 and 33)). In addition, “Vitrolife AB transacted business through a single internet website, as

well as brochures and other marketing materials to sell their PGT-A testing product in a false and

misleading way throughout the United States, including in Florida, for their laboratory located in

Miami, Florida” (DE 54 at 7). Vitrolife AB counters that it cannot be subject to this provision of

the long-arm statute, because it is a Swedish entity, and any alleged tort was committed outside of

Florida (DE 56 at 5-6). Vitrolife AB does not acknowledge that the Eleventh Circuit has

“consistently held that, under Florida law, a nonresident defendant commits a tortious act in

Florida by performing an act outside the state that causes injury within Florida.” Del Valle v.

Trivago GMBH, 56 F.4th 1265, 1272 (11th Cir. 2022). Plaintiffs’ allegations collectively establish

that Vitrolife AB participated in the marketing and sales of the PGT-A testing, from Sweden or

elsewhere, through its website and its alleged deceptive and misleading advertising caused

economic injury to consumers in Florida, who purchased the testing. See id. at 1273 (discussing

Louis Vuitton Malletier, S.A., 736 F.3d at 1353, which the Eleventh Circuit described as holding

“allegations regarding the sale of infringing goods to Florida residents through the accessible

website sufficed to establish specific personal jurisdiction under § 48.193(1)(a)(2)” (emphasis in

original)).

Even if the allegations in the Complaint were sufficient to state a prima facie case for

jurisdiction under Louis Vuitton Malletier, S.A., they were sufficiently controverted by Ms.

Schardt’s declaration. The unrefuted facts before the Court demonstrate that Vitrolife AB does

not sell or market products in Florida and does not conduct or solicit business in Florida. These

facts directly challenge Plaintiffs’ allegations that Vitrolife AB sold PGT-A testing to Florida

residents, conducted PGT-A testing in Florida, and distributed brochures and other marketing

materials for PGT-A testing that reached Florida residents. See Meier ex rel. Meier, 288 F.3d at

1269 (“Where, as here, the defendant submits affidavits to the contrary, the burden traditionally

shifts back to the plaintiff to produce evidence supporting jurisdiction unless those affidavits

contain only conclusory assertions that the defendant is not subject to jurisdiction.” (citation

omitted)). After the burden shifted back to Plaintiffs to show Vitrolife AB engaged in activity,

whether on its own, or through operational control of Igenomix, as part of the alleged tort, Plaintiffs

have offered no such evidence.7 Lastly, Plaintiffs’ argument that “because Defendants have

caused injury in Florida by the acts and omissions with the sale of their PGT-A in Florida, specific

7 The 2025 Vitrolife Group Interim Report provided by Plaintiffs does not rebut the facts set forth

in Ms. Schardt’s declaration for all the reasons previously stated.

jurisdiction also exists under §48.193(1)(a)(6)” in a single, conclusory sentence fares no better

(DE 54 at 7). Again, the prevailing evidence shows Vitrolife AB did not sell or market PGT-A

testing in Florida, and Plaintiffs have not produced facts demonstrating that Igenomix’s contacts

should be imputed to Vitrolife AB through an agency theory. Plaintiffs simply have not shown

that Vitrolife AB, either on its own or through operational control of Igenomix, has sufficient

contacts to bring it within the specific jurisdiction of Florida’s long-arm statute.

5. Due Process

To satisfy the due process analysis, “it is that the defendant’s conduct and connection with

the forum State are such that he should reasonably anticipate being haled into court there.” World-

Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980) (citing Kulko v. Superior Ct. of

California In & For City & Cnty. of San Francisco, 436 U.S. 84, 97-98 (1978)). “[T]he

constitutional touchstone remains whether the defendant purposefully established ‘minimum

contacts’ in the forum State.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985) (citing

International Shoe Co., 326 U.S. at 316). “A tribunal’s authority depends on the defendant having

such contacts with the forum that ‘the maintenance of the suit’ is ‘reasonable, in the context of our

federal system of government,’ and ‘does not offend traditional notions of fair play and substantial

justice.’” Del Valle, 56 F.4th at 1274 (citations omitted).

In specific personal jurisdiction cases, we apply the three-part due process test,

which examines: (1) whether the plaintiff’s claims “arise out of or relate to” at least

one of the defendant’s contacts with the forum; (2) whether the nonresident

defendant ‘purposefully availed’ himself of the privilege of conducting activities

within the forum state, thus invoking the benefit of the forum state’s laws; and (3)

whether the exercise of personal jurisdiction comports with ‘traditional notions of

fair play and substantial justice.’

Louis Vuitton Malletier, S.A., 736 F.3d at 1355 (citations omitted).

Because there is no personal jurisdiction, general or specific, over Vitrolife AB pursuant

to Florida’s long-arm statute, there is no need to determine if Due Process is satisfied. See

Melgarejo v. Pycsa Panama, S.A., 537 F. App’x 852, 862 (11th Cir. 2013) (“Because the district

court properly concluded there is no basis for specific personal jurisdiction . . . we do not reach

the second question of the personal jurisdiction analysis—whether such an exercise of personal

jurisdiction would be constitutional.”). Nevertheless, in this case, for all the reasons discussed

herein, Vitrolife AB’s Florida contacts, which the uncontroverted evidence shows are virtually

none, “do not ‘closely approximate the activities that ordinarily characterize a corporation’s place

of incorporation or principal place of business’ . . . .” Waite v. All Acquisition Corp., 901 F.3d

1307, 1318 (11th Cir. 2018) (citation omitted). Moreover, Vitrolife AB is based in Sweden, and

Plaintiffs have not demonstrated that Vitrolife AB, on its own or through an agent, was sufficiently

connected to Florida or did business in Florida to comport with the requirements of Due Process.

The records lack sufficient evidence to show that Plaintiffs’ claims arise out of or relate to Vitrolife

AB’s Florida contacts or that Vitrolife AB purposefully availed itself of the benefits of conducting

business in Florida. Therefore, it is respectfully recommended that Vitrolife AB’s Motion to

Dismiss for Lack of Personal Jurisdiction be GRANTED and that all claims against Vitrolife AB

be DISMISSED WITHOUT PREJUDICE.8

B. Defendants Igenomix and Vitrolife, Inc.’s Motions to Compel Arbitration

Defendants Igenomix and Vitrolife, Inc. contend that Plaintiffs’ claims are “committed to

the jurisdiction of the arbitrators to be appointed by the American Arbitration Association” (DE

8 Since it is respectfully recommended that Vitrolife AB be dismissed from this action for lack of

personal jurisdiction, the undersigned does not address the remaining arguments in Vitrolife AB’s

Motion to Dismiss. If, however, Plaintiffs have shown personal jurisdiction over Vitrolife AB, the

analysis in the remainder of this Report and Recommendation would apply to Vitrolife AB as well.

26 at 1, DE 49, DE 50). In support of this argument, Igenomix and Vitrolife, Inc. explain that each

Plaintiff signed the Consent Form that has an arbitration provision, which is fully enforceable (DE

26 at 5-10, DE 49, DE 50). In response, Plaintiffs point out that “the arbitration clause is not

enforceable by non-signatory Vitrolife, Inc., who is simply not a party or third-party beneficiary

of the Consent Form” (DE 36 at 2, DE 54). Next, Plaintiffs contend that their claims fall outside

the scope of the arbitration agreement (DE 36 at 3-4, DE 54 at 14). Plaintiffs also assert that the

arbitration clauses are procedurally and substantively unconscionable, because they do not

preserve access to all available remedies, such as equitable and declaratory relief (id. at 16).

The Consent Forms signed by Plaintiffs and Igenomix, which contained the arbitration

provision, have two variations – one governed by California law and one governed by Florida law.

The arbitration provision in the Consent Forms governed by Florida law stated, in relevant part:

I acknowledge that any legal controversy, dispute, or disagreement arising out of the

services provided by Igenomix USA or any subsidiary thereof shall be settled by

binding arbitration by the American Arbitration Association, under the applicable

Arbitration Rules then in effect. Information may be obtained, and claims may be filed

in the State of Florida office of the American Arbitration Association. All disputes shall

be decided under the laws of the State of Florida.

(DE 26-1 at 7, DE 26-3 at 5, DE 26-7 at 6). The arbitration provision in the Consent Forms

governed by California law stated, in relevant part:

I/we acknowledge that any legal controversy, dispute or disagreement arising out of the

services provided by Igenomix USA or any subsidiary thereof shall be settled by

binding arbitration by the American Arbitration Association, under the applicable

Arbitration Rules then in effect. Any award of the arbitrator(s) may be entered as a

judgment in any court of competent jurisdiction. Information may be obtained and

claims may be filed in any California office of the American Arbitration Association.

Any such arbitration shall take place at the American Arbitration Association office

San Francisco, California; or if no such office exists, at the American Arbitration Office

closest to Igenomix USA’s corporate headquarters at the time of the filing of the

arbitration. All disputes shall be decided under the laws of the State of California.

(DE 26-2 at 7, DE 26-4 at 4, DE 26-5 at 1, DE 26-6 at 4).

On January 20, 2026, the Court held a hearing on the pending Motions, at which the Parties

agreed that the Consent Forms contain a valid agreement to arbitrate claims that fall within their

scope, that the signatories to the arbitration agreement are Plaintiffs and Igenomix, and that the

Court can consider the language in the Consent Forms as part of the Motion, even though they

were not attached to the Complaint but were referenced throughout (DE 65). The Parties further

agreed that there is no delegation clause in the relevant arbitration provisions, so the Court decides

the issue of arbitrability (id.). Defendants conceded that they did not raise any argument in their

Motion that under the arbitration clause, the arbitrator should decide arbitrability and therefore,

any such argument has been waived. See Bodine v. Cook’s Pest Control Inc., 830 F.3d 1320, 1324

(11th Cir. 2016) (explaining that a defendant must properly raise a delegation clause otherwise it

is waived, and the “court must determine whether the arbitration agreement is enforceable.”

(citation omitted)).9 Lastly, the Parties agreed that to the extent the Court must look to principles

of state law, the legal analysis under California and Florida law – the two relevant state laws

invoked by the Consent Forms – produces the same result.

1. Legal Standard

Under the Federal Arbitration Act (“FAA”), “[a] written provision in any . . . contract

evidencing a transaction involving commerce to settle by arbitration . . . shall be valid, irrevocable,

and enforceable.” 9 U.S.C. § 2 (2022). Further, a party “may petition any United States district

court . . . for an order directing that such arbitration proceed in the manner provided for in such

9 Both Parties clearly asserted in their filings that the arbitration clauses do not contain a delegation

clause (DE 36 at 4; DE 40 at 3); see also Doe v. Princess Cruise Lines, Ltd., 657 F.3d 1204, 1213

(11th Cir. 2011) (finding the defendant’s contention a “non-starter” when it argued on appeal that

the district court should not have decided arbitrability, after requesting that the district court decide

for itself whether the dispute was subject to arbitration in the proceedings below and invoking the

doctrine of invited error).

agreement.” Id. § 4. If a case is referred to arbitration, a court “shall. . . stay the trial of the action

until such arbitration has been had.” Id. § 3. “The FAA embodies a ‘liberal federal policy favoring

arbitration agreements.’” Hemispherx Biopharma, Inc. v. Johannesburg Consol. Invs., 553 F.3d

1351, 1366 (11th Cir. 2008) (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460

U.S. 1, 24 (1983)). “The role of the courts is to ‘rigorously enforce agreements to arbitrate[;]’”

therefore, the presence of a valid arbitration agreement raises a strong presumption of enforcement.

Id. at 1366 (quoting Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 221 (1985)); Mitsubishi

Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 630-31 (1985).

“Under federal law, arbitration is a matter of consent, not coercion.” Fridman v. 1-800

Contacts, Inc., 554 F. Supp. 3d 1252, 1256 (S.D. Fla. 2021) (quotation and citation omitted).

“Because the FAA is at bottom a policy guaranteeing the enforcement of private contractual

arrangements, we look first to whether the parties agreed to arbitrate a dispute, not to general policy

goals, to determine the scope of the agreement.” Doe v. Princess Cruise Lines, Ltd., 657 F.3d at

1214 (citation omitted). “The courts are not to twist the language of the contract to achieve a result

which is favored by federal policy but contrary to the intent of the parties.” Goldberg v. Bear,

Stearns & Co., 912 F.2d 1418, 1419-20 (11th Cir. 1990). “[T]he parties will not be required to

arbitrate when they have not agreed to do so.” Id. “Because ‘arbitration is a matter of contract,’

determining whether a claim falls within the scope of an arbitration agreement ‘is generally a

matter of state law’ . . . .” Entrekin v. Internal Med. Assocs. of Dothan, P.A., 689 F.3d 1248, 1251

(11th Cir. 2012).

2. Whether Plaintiffs’ Claims Come Within the Scope of the

Arbitration Clauses

First, the Parties dispute whether Plaintiffs’ claims in the Complaint fall within the scope

of the arbitration clauses contained in the Consent Forms. Defendants contend Plaintiffs’ claims

fall within the language of the arbitration provision, because the language is broad and applies to

“any legal controversy, dispute, or disagreement arising out of the services” (DE 26 at 8). Plaintiffs

do not contest that they signed the Consent Forms with the arbitration provisions (DE 36 at 8).

Rather, Plaintiffs argue that their fraud, misrepresentation, and deceptive marketing and promotion

claims are not within the scope of the arbitration provisions, as they do not arise from the services

provided by Defendants (id.).

In Florida, “[t]wo basic types of arbitration provisions have emerged: (1) provisions with

language and application narrow in scope, and (2) provisions with language and application broad

in scope.” Jackson v. Shakespeare Found., Inc., 108 So. 3d 587, 593 (Fla. 2013) (citation omitted).

“An arbitration provision that is considered to be narrow in scope typically requires arbitration for

claims or controversies ‘arising out of’ the subject contract.” Id. A narrow arbitration provision

“appl[ies] only to ‘those claims that have a direct relationship to a contract’s terms and

provisions.’” Leidel v. Coinbase, Inc., 729 F. App’x 883, 887 (11th Cir. 2018) (citation omitted).

“On the other hand, the phrase ‘arising out of or relating to’ the contract has been interpreted

broadly to encompass virtually all disputes between the contracting parties, including related tort

claims.” Seifert v. U.S. Home Corp., 750 So. 2d 633, 637 (Fla. 1999) (citation omitted). A broad

arbitration provision “appl[ies] to ‘claims that are described as having a ‘significant relationship’

to the contract . . . .’” Leidel, 729 F. App’x at 887 (citation omitted).

The arbitration clauses in the Consent Forms call for “any legal controversy, dispute, or

disagreement arising out of the services provided by Igenomix” to be submitted to arbitration (DE

26-1 at 7, DE 26-2 at 7, DE 26-3 at 5, DE 26-4 at 4, DE 26-5 at 1, DE 26-6 at 4, DE 26-7 at 6

(emphasis added)). Since the arbitration clauses utilize the narrower “arising out of” language,

“the provision is limited to disputes that arise under the [services themselves] – disputes that have

a direct relationship to the [services’] ‘terms and provisions’ – not disputes that stem from the

parties’ relationship more generally.” Joseph v. Communicare Healthcare Servs. Inc., No. 21-

CIV-60164, 2021 WL 1565537, at *2 (S.D. Fla. Mar. 18, 2021), report and recommendation

adopted, No. 21-CIV-60164, 2021 WL 1564429 (S.D. Fla. Apr. 21, 2021).

Based on the allegations in the Complaint, Plaintiffs’ claims go to supposedly “false,

deceptive, unfair, and misleading advertising marketing, and promotion of Defendants’

preimplantation genetic testing[,]” and “Defendants’ unfair and deceptive business practices

arising from Defendants’ marketing and sale of PGT-A testing” (DE 1 ¶¶ 1-2, at 73 ¶ 204, at 74 ¶

211). Plaintiffs launch similar allegations for each of their consumer protection claims, contending

that “consumers would not have paid for Defendants’ PGT-A testing but for Defendants’ false and

misleading representations, omissions, and promotion as detailed throughout this Complaint” (id.

¶¶ 206, 208, 249, 252, 259, 265-66, 275-78, 280, 291, 302, 308-09). With respect to their fraud

claims, Plaintiffs contend Defendants made a series of false statements, including:

Defendants’ PGT-A testing is 98 to 99% accurate; Defendants’ PGT-A testing

improves pregnancy rates; Defendants’ PGT-A testing increases implantation rates;

Defendant’s PGT-A testing increases delivery rates; Defendant’s PGT-A testing

increases the chance of a healthy baby; Defendants’ PGT-A testing benefits every

couple, especially individuals of advanced maternal age; Defendants’ PGT-A

testing increases the success of IVF; Defendant’s PGT-A testing provides more

viable embryos; Defendants’ PGT-A testing decreases the time and cost of IVF;

Defendants’ PGT-A testing decreases the rate of miscarriage; and Defendants’

PGT-A testing is superior to all others.

(id. ¶ 339). Further, “Defendants intentionally suppressed and concealed material facts about their

PGT-A,” and “Defendants knew about the problems and issues with PGT-A” (id. ¶ 348). Plaintiffs

allege that “[h]ad Plaintiffs . . . known the truth, and of the material facts that Defendants omitted

to disclose to them, they would not have purchased PGT-A from Defendants. . . .” (id. ¶ 350).

It is clear from the Complaint that these claims are centered around the marketing and

advertising that Defendants engaged in to persuade Plaintiffs to purchase their testing (see e.g., id.

¶¶ 18, 22-23, 59, 95, 117, 149-50, 155, 170, 182, 186, 191). Plaintiffs maintain that these claims

do not arise from the services that were later provided by Defendants, such as the PGT-A testing.

Instead, these claims arise from the purported consumer fraud by Defendants that occurred before

any goods or services were provided to Plaintiffs, which in turn, induced Plaintiffs to purchase

Defendants’ services. Plaintiffs’ arguments are compelling for several reasons. First, Florida law

has long recognized separate and distinct torts based on antecedent fraudulent representations,

independent of any breach of a contract that was subsequently entered into by the parties. See

HTP, Ltd. v. Lineas Aereas Costarricenses, S.A., 685 So. 2d 1238, 1239 (Fla. 1996) (“Fraudulent

inducement is an independent tort in that it requires proof of facts separate and distinct from the

breach of contract. It normally ‘occurs prior to the contract and the standard of truthful

representation placed upon the defendant is not derived from the contract,’ i.e., ‘whether the

defendant was truthful during the formation of the contract is unrelated to the events giving rise to

the breach of the contract.’” (citations omitted)). Here too, Plaintiffs’ allegations consistently

target Defendants’ representations about the efficacy and benefits of their testing used to entice

Plaintiffs into purchasing the testing, not an attack on whether Defendants performed under the

contract by providing the agreed upon services. The purported fraud that Plaintiffs complain of is

“extraneous to the contract[,]” not “interwoven” with it. Id. at 1240 (citation omitted).

Second, the duties that Plaintiffs allege Defendants violated do not arise from the contract

but instead, from an independent statutory obligation. For example, in Count Three, Plaintiffs

allege that Defendants violated the Florida Deceptive and Unfair Trade Practices Act (“FDUPTA”)

(id. ¶¶ 245-56). “A consumer claim under FDUTPA must have three elements: (1) a deceptive act

or unfair practice; (2) causation; and (3) actual damages.” Lombardo v. Johnson & Johnson

Consumer Companies, Inc., 124 F. Supp. 3d 1283, 1290 (S.D. Fla. 2015). “A deceptive act or

practice is one that is likely to mislead consumers and an unfair practice is one that offends

established public policy and one that is immoral, unethical, oppressive, unscrupulous or

substantially injurious to consumers.” State Farm Mut. Auto. Ins. Co. v. Med. Serv. Ctr. of Fla.,

Inc., 103 F. Supp. 3d 1343, 1354 (S.D. Fla. 2015). Importantly, FDUPTA provides a right of

action to any entity that can prove the elements of the claim, not simply a direct consumer. See

Fla. Emergency Physicians Kang & Assocs., M.D., Inc. v. United Healthcare of Fla., Inc., 526 F.

Supp. 3d 1282, 1301 (S.D. Fla. 2021) (finding an entity that is not a direct customer can bring suit

following the 2001 amendments to FDUPTA). Of particular import here, Defendants’ duty not to

engage in deceptive acts likely to mislead consumers is imposed – not by the contract at issue, the

Consent Forms but– by a statutory obligation based on public policy that is owed not just to those

in privity of contract with Defendants, but the public generally. See Leidel, 729 F. App’x at 888

(“[A] claim does not have a nexus to a contract if it pertains to the breach of a duty otherwise

imposed by law or in recognition of public policy, such as a duty under the general common law

owed not only to the contracting parties but also to third parties and the public.” (quoting Jackson,

108 So. 3d at 593)). The very nature of Plaintiffs’ FDUPTA and similar claims counsels against

the existence of a direct relationship between these claims and the services provided under the

Consent Forms.

Defendants counter that Plaintiffs’ causes of action arise from the sale of the testing

services, and any claim challenging those services must arise from the services provided.

Defendants also point to Plaintiffs’ allegations that the Consent Forms themselves contain the

alleged misrepresentations with which Plaintiffs take issue. Lastly, Defendants argue that for

Plaintiffs to have actionable fraud-based claims, Plaintiffs must have obtained Defendants’

services to meet various elements, such as causation and damages, and require reference to the

obligations created by the Consent Forms. But, Defendants’ arguments require a departure from

the narrow interpretation of the arbitration clauses, to which the Court is constrained. Defendants

essentially implore the Court to find that these claims have a significant relationship to the services

they provided. Indeed, Defendants’ arguments may have proven persuasive if the arbitration

clauses had the broader language – arising under and relating to – analyzed in Jackson, 108 So. 3d

at 595. There, the Florida Supreme Court found that the Jacksons’ allegedly fraudulent statements

to the Shakespeare Foundation, which it relied upon in entering into the contract to buy the

Jacksons’ land, had “a significant relationship to the contract” and brought the fraud claim “within

the scope of the contract’s broad arbitration provision.” Id. The Florida Supreme Court discussed

how “the reliance element of the claim emanates from the transaction from which the contract

arose, and the damages element of the claim arises from the execution and existence of the contract

itself.” Id. It cannot be overlooked, however, that the arbitration provision in this case is

fundamentally different, as it is narrower in scope due to the absence of the “relating to” language.

Nor can Defendants prevail on the argument that any doubt about the arbitration clauses’

application must be resolved in favor of arbitration under the FAA. See Doe v. Princess Cruise

Lines, Ltd., 657 F.3d at 1214 (“Even though there is that presumption in favor of arbitration, ‘[t]he

courts are not to twist the language of the contract to achieve a result which is favored by federal

policy but contrary to the intent of the parties.’ That means ‘the parties will not be required to

arbitrate when they have not agreed to do so.’” (citations omitted)).

The arbitration provisions in the Consent Forms closely resemble the provisions at issue in

Leidel. Although not binding precedent, the Eleventh Circuit found that the narrow arbitration

clause did not encompass claims for Defendant’s failure to monitor, investigate, detect, and report

activity by third-party users of its financial services website based on duties imposed by the Bank

Secrecy Act and its implementing regulations. 729 F. App’x at 888. The Eleventh Circuit noted,

“Leidel’s claims rely on obligations allegedly imposed by law and in recognition of public policy

to persons who are strangers to the User Agreements” and found “those claims [failed to] meet the

more stringent ‘direct relationship’ standard applicable to arbitration provisions that are narrow in

scope.” Id. At the January 20, 2026 hearing, Defendants argued that Leidel is distinguishable,

because Plaintiff was a non-signatory, third-party, and the arbitration agreement was between the

defendant and the fraudster. Although true, there is nothing in the opinion that suggests these facts

had a material impact on the Court’s reasoning. To the contrary, the Eleventh Circuit relied heavily

on Siefert, 750 So.2d at 641, where the Florida Supreme Court found that the plaintiff’s claims

were outside the scope of an arbitration provision, to which both the plaintiff and the defendant

were signatories. Considering the arbitration provision in the Consent Forms is narrow in scope

under Florida law, Defendants have not established that Plaintiffs’ claims for unfair and deceptive

trade practices in Counts One through Ten and fraud in Counts Thirteen and Fourteen have a direct

relationship to the services provided by Defendants, such that the dispute in question “was an

immediate, foreseeable result of the performance of contractual duties.” Telecome Italia, SpA v.

Wholesale Telecom Corp., 248 F.3d 1109, 1116 (11th Cir. 2001).

Plaintiffs’ claims for breach of implied and express warranty in Counts Eleven, Twelve,

and Fifteen, and unjust enrichment in Count Sixteen, however, are of a different character. With

respect to their breach of warranty and usability claims, Plaintiffs allege in the Complaint that

“Defendants, as the provider and seller of their PGT-A testing, impliedly warranted to Plaintiffs

and the Class that Defendants’ PGT-A was of merchantable quality and fit for its ordinary and

intended use” (DE 1 ¶¶ 320, 328). Plaintiffs claim, “Defendants breached the implied warranty of

merchantability in connection with the sale of PGT-A[,]” and “[w]hile Defendants advertise,

market, and promote that their PGT-A testing is accurate and reliable, it is not, rendering it

unsuitable for use” (id. ¶ 322). Plaintiffs “can establish privity with Defendants because Plaintiffs

purchased PGT-A from Defendants” (id. ¶¶ 324, 334). Similarly, Plaintiffs contend, “Defendants

understood that Plaintiffs . . . would require that their PGT-A testing provide reliable and accurate

information regarding their embryos and Defendants delivered their PGT-A tests to Plaintiffs . . .

understanding the need to meet these requirements” (id. ¶¶ 325, 335). According to Plaintiffs,

“[d]espite Defendants’ express warranties about accuracy and reliability, its PGT-A testing is not

accurate or reliable” and “therefore not what Defendants represented it to be” (id. ¶¶ 365-66).

Regarding the unjust enrichment claim, the Complaint alleges that Defendants “received a

measurable benefit at the expense of Plaintiffs and Class members in the form of payment for

PGT-A testing[,]” and “Defendants accepted monetary benefits from Plaintiffs . . . at the detriment

of Plaintiffs” (id. ¶¶ 373-74).

Unlike the deceptive and unfair trade practices claims and the fraud claims, these

allegations are directly linked to the services provided by Defendants — the PGT-A testing, itself.

Put differently, by Plaintiffs’ own allegations, the breach of implied warranty and merchantability,

breach of the implied warranty of usability, breach of express warranty, and unjust enrichment

claim “arise out of” Defendants’ services, because they are inextricably intertwined with the

administration of the PGT-A testing under the contract, instead of Defendants’ advertising and

marketing practices. Moreover, these claims arise from the agreement to provide PGT-A testing

services, and without the contract between Plaintiffs and Igenomix, no such relationship would

exist. See Hearn v. Comcast Cable Commc’ns, LLC, 992 F.3d 1209, 1214-16 (11th Cir. 2021)

(explaining that the plaintiff’s claim under the Fair Credit Reporting Act fell within the scope of

an arbitration agreement in the defendant’s subscriber agreement and that the defendant could not

have allegedly committed a tort but for the pre-existing agreement). Plaintiffs cannot take issue

with the services they received, that is the PGT-A testing, while trying to avoid arbitration

provisions that encompass disputes arising out of those very same services. In sum, Plaintiffs’

claims for breach of implied warranty of merchantability in Count Eleven, breach of implied

warranty of usability in Count Twelve, breach of express warranty in Count Fifteen, and unjust

enrichment in Count Sixteen are subject to arbitration with Igenomix, and it is respectfully

recommended that Igenomix’s Motion to Compel Arbitration be GRANTED IN-PART with

respect to those claims.

3. Whether Vitrolife, Inc. Can Invoke Equitable Estoppel

It is undisputed that Vitrolife, Inc. is not a signatory to the Consent Forms containing the

arbitration clauses. Nevertheless, Vitrolife, Inc. argues that even as a non-signatory, it should be

permitted to compel arbitration of Plaintiffs’ claim under the doctrine of equitable estoppel. In

Vitrolife, Inc.’s view, it can compel arbitration, because Plaintiffs’ Complaint alleges that all

Defendants collectively committed the acts giving rise to their claims without distinguishing or

identifying any separate conduct by Vitrolife, Inc. (DE 40 at 7). Plaintiffs counter that equitable

estoppel does not apply, because their claims are not within the scope of arbitration provision, and

a non-signatory is not allowed to expand an arbitration provision to encompass non-arbitrable

claims (DE 36 at 7).

“The issue of whether a non-signatory to an agreement can use an arbitration clause in that

agreement to force a signatory to arbitrate a dispute between them is controlled by state law.”

Kroma Makeup EU, LLC v. Boldface Licensing + Branding, Inc., 845 F.3d 1351, 1354 (11th Cir.

2017) (citation omitted). “[T]here are certain limited exceptions, such as equitable estoppel, that

allow nonsignatories to a contract to compel arbitration.” MS Dealer Serv. Corp. v. Franklin, 177

F.3d 942, 947 (11th Cir. 1999), abrogated on other grounds by Arthur Andersen LLP v. Carlisle,

556 U.S. 624, 631 (2009) (citation omitted). “These exceptions recognize that ‘the arbitration

proceedings between the two signatories would be rendered meaningless and the federal policy in

favor of arbitration effectively thwarted’ if the signatory was not compelled to also arbitrate the

dispute brought against a non-signatory.” A-Team Trappers, L.L.C., 2023 WL 4846598, at *3.

Under Florida law, a non-signatory can invoke an arbitration clause “when the signatory to the

contract containing the arbitration clause raises allegations of concerted conduct by both the non-

signatory and one or more of the signatories to the contract.’” Shetty v. Palm Beach Radiation

Oncology Assocs.-Sunderam K. Shetty, M.D., P.A., 915 So. 2d 1233, 1235 (Fla. Dist. Ct. App.

2005)). “Courts must look to whether the plaintiff’s claims against the signatory and non-signatory

both arise out of the same factual allegations when determining if equitable estoppel applies in

these circumstances.” A-Team Trappers, L.L.C., 2023 WL 4846598, at *3.

It is evident that a non-signatory cannot compel the arbitration of claims that fall outside

the scope of the arbitration clause. See Leidel, 729 F. App’x at 886-87 (“[I]n order to compel

arbitration under a theory of equitable estoppel, the party seeking to compel arbitration must show

both that the plaintiff is relying on a contract to assert its claims and that the scope of the arbitration

clause in that contract covers the dispute.”). As set forth above, Plaintiffs’ claims for breach of

implied warranty of merchantability in Count Eleven, breach of implied warranty of usability in

Count Twelve, breach of express warranty in Count Fifteen, and unjust enrichment in Count

Sixteen fall within the scope of the arbitration clause, and Igenomix, as a signatory to the

arbitration agreement, may compel arbitration with respect to them. Vitrolife, Inc. too, as a non-

signatory, may compel arbitration of these claims under the doctrine of equitable estoppel.

In their Complaint, Plaintiffs levy virtually all of their allegations Igenomix, Vitrolife AB,

Vitrolife Group, and Vitrolife, Inc. collectively as “Defendants” (see generally DE 1). This

collective style of pleading persists throughout Plaintiffs’ merchantability, warranty, usability, and

unjust enrichment claims, where Plaintiffs broadly allege “Defendants” without identifying any

specific conduct attributable to each entity (id. ¶¶ 320, 322-26, 328, 331-37, 362-68, 371-77). In

reading these allegations, Plaintiffs inextricably intertwine non-signatory Vitrolife, Inc.’s

purported conduct with that of the signatory, Igenomix. See Escobal v. Celebration Cruise

Operator, Inc., 482 F. App’x 475, 476 (11th Cir. 2012) (affirming the application of equitable

estoppel as the plaintiff’s claims against the non-signatory were “inextricably intertwined” with

his claims against the signatory). Moreover, because the Complaint treats Vitrolife, Inc. and

Igenomix as largely the same actor, allowing Igenomix to arbitrate Plaintiffs’ claims, but not

Vitrolife, Inc., could lead to irreconcilable results. “[Precluding the application of equitable

estoppel] allow[s] Plaintiff[s] to effectively render the arbitration proceedings between [them and

Igenomix] meaningless, because in the event [they] received an unfavorable decision [Plaintiffs]

could merely relitigate the exact same issue against [Vitrolife, Inc.].” A-Team Trappers, L.L.C.,

2023 WL 4846598, at *3. Accordingly, it is respectfully recommended that Vitrolife, Inc. be

permitted to invoke the doctrine of equitable estoppel to compel arbitration of Plaintiffs’ claims

for breach of implied warranty of merchantability in Count Eleven, breach of implied warranty of

usability in Count Twelve, breach of express warranty in Count Fifteen, and unjust enrichment in

Count Sixteen and that Vitrolife, Inc.’s Motion to Compel Arbitration be GRANTED IN-PART

with respect to these claims.

4. Enforceability of the Arbitration Clauses

In a final attempt to avoid arbitration, Plaintiffs unconvincingly argue that the arbitration

clauses are procedurally and substantively unconscionable as part of an adhesion contract

presented in “an environment of duress” (DE 26 at 14-16). Courts routinely reject arguments that

arbitration clauses are procedurally unconscionable because it is a “take it or leave it” contract.

See Bhim v. Rent-A-Ctr., Inc., 655 F. Supp. 2d 1307, 1315 (S.D. Fla. 2009) (finding no procedural

unconscionability even though the contract was presented as a “take it or leave it” basis when the

plaintiff could not show that she lacked employment alternatives). Further, nothing in the record

suggests that Plaintiffs were under duress when presented with the Consent Forms. See Emps. Ins.

of Wausau v. Able Green, Inc., 749 F. Supp. 1100, 1104 (S.D. Fla. 1990) (“The purpose behind

the unconscionability doctrine is ‘prevention of oppression and unfair surprise.’” (quotation

omitted)). Similarly, the Court is unconvinced that the arbitration clauses are substantively

unconscionable, because they are silent as to Plaintiffs’ rights to seek injunctive or declaratory

relief. At bottom, Plaintiffs fail to show that the arbitration clauses unfairly favor Defendants or

materially alter Plaintiffs’ statutory rights and remedies. See Garcia v. Church of Scientology Flag

Serv. Org., Inc., No. 18-CIV-13452, 2021 WL 5074465, at *7 (11th Cir. Nov. 2, 2021) (“A contract

is substantively unconscionable if its terms ‘unreasonably favor’ one party and ‘are so unfair’ that

a court should not enforce them.” (citation omitted and cleaned up)). As such, the arbitration

clauses are not procedurally and substantively unconscionable and should be enforced.

III. CONCLUSION

Based on the foregoing, it is respectfully recommended that Defendant Vitrolife AB’s

Motion to Dismiss for Lack of Personal Jurisdiction (DE 49) be GRANTED and that Defendant

Vitrolife AB be DISMISSED WITHOUT PREJUDICE under Federal Rule of Civil Procedure

12(b)(2). It is further respectfully recommended that Defendants Igenomix USA, Inc. and

Vitrolife, Inc.’s Motions to Compel Arbitration (DE 26, 27) be GRANTED IN-PART and

DENIED IN-PART. It is further respectfully recommended that Plaintiffs’ claims for breach of

implied warranty of merchantability in Count Eleven, breach of implied warranty of usability in

Count Twelve, breach of express warranty in Count Fifteen, and unjust enrichment in Count

Sixteen against Igenomix USA, Inc. and Vitrolife, Inc. be submitted to arbitration. As to Plaintiffs’

remaining claims against Igenomix USA, Inc. and Vitrolife, Inc. for unfair and deceptive trade

practices in Counts One through Ten and fraud in Counts Thirteen and Fourteen, it is further

respectfully recommended that Defendants Igenomix USA, Inc. and Vitrolife, Inc.’s Motions to

Compel Arbitration (DE 26, 27) be DENIED.10

IV. OBJECTIONS

The Parties will have fourteen (14) days from the date of this Report and Recommendation

to file written objections, if any, with the Honorable William P. Dimitrouleas, United States

District Judge. Failure to file objections timely shall bar the parties from a de novo determination

by the District Judge of an issue covered in this Report and shall bar the parties from attacking on

appeal unobjected-to factual and legal conclusions contained in this Report, except upon grounds

of plain error, if necessary, in the interest of justice. See 28 U.S.C. § 636(b)(1); Thomas v. Arn,

474 U.S. 140, 149 (1985); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989); 11th Cir. R. 3-

1 (2016).

10 Section 3 of the FAA indicates a stay is mandatory for arbitrable claims. 9 U.S.C. § 3. “When

confronted with litigants advancing both arbitrable and nonarbitrable claims, however, courts have

discretion to stay nonarbitrable claims.” Klay v. All Defendants, 389 F.3d 1191, 1204 (11th Cir.

2004). In the Eleventh Circuit, “it is well established that a district court may order arbitration and

refuse to stay nonarbitrable proceedings.” Id. “Crucial to this determination is whether arbitrable

claims predominate or whether the outcome of the nonarbitrable claims will depend upon the

arbitrator’s decision.” Id.

RESPECTFULLY SUBMITTED in Chambers in Miami, Florida on this 27th day of

January, 2026. i, C

□□

EDL) aa

ELLEN F. D’ANGELO

UNITED STATES MAGISTRATE JUDGE

ce: All Counsel of Record

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