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IN THE CIRCUIT COURT OF THE SIXTEENTH JUDICIAL CIRCUIT IN AND FOR MONROE COUNTY, FLORIDA

A BOAT 4 FUN, INC. d.b.a. Catamaran Boat Yard, a Florida corporation, Petitioner, vs. Case No. 18-CA-24-P STATE OF FLORIDA, OFFICE OF THE ATTORNEY GENERAL, DEPARTMENT OF LEGAL AFFAIRS, Respondent. __________________________________________/

THE ATTORNEY GENERAL’S RESPONSE TO THE PETITION TO QUASH THE INVESTIGATIVE SUBPOENA DUCES TECUM OR, ALTERNATIVELY, MODIFYING

THE INVESTIGATIVE SUBPOENA, AND MOTION TO COMPEL PETITIONER’S COMPLIANCE WITH THE INVESTIGATIVE SUBPOENA

Respondent, State of Florida, Office of the Attorney General, Department of Legal Affairs

(the “Attorney General”), files this Response to A Boat 4 Fun, Inc. d.b.a. Catamaran Boat Yard’s

(“Catamaran”) Petition to Quash the Investigative Subpoena Duces Tecum Issued by the Office of

the Attorney General or, Alternatively, Modifying the Subpoena (the “Petition”) and, pursuant to

Section 501.206(3), Florida Statutes, the Attorney General files this Motion for Order Compelling

Catamaran’s Compliance with the Attorney General’s Investigative Subpoena Duces Tecum (the

“Investigative Subpoena”).

Introduction

The Investigative Subpoena Catamaran seeks to quash stems from Catamaran’s boat

storage and boat towing services provided to consumers in the wake of Hurricane Irma. Prior to

Hurricane Irma, it appears Catamaran provided the boat storage services to consumers at a flat rate

Filing # 68138342 E-Filed 02/19/2018 01:38:19 PM

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– generally at a fixed price per foot. Yet, immediately before the impending landfall of Hurricane

Irma in Florida, it appears Catamaran increased its rates.1

Based on numerous consumer complaints2 received by the Attorney General related to

Catamaran’s business practices, the Attorney General initiated an investigation into any unfair or

deceptive acts and practices, or any unconscionable acts or practices.

The Attorney General has reason to believe that Catamaran has engaged in, or is engaging

in, acts or practices that violate the Florida Deceptive and Unfair Trade Practices Act, Chapter

501, Part II, Florida Statutes (“FDUTPA”). The only question properly before the Court is whether,

at the time it was issued, the Attorney General had a reasonable basis for issuing the Investigative

Subpoena to Catamaran. As set forth herein, the answer is clearly yes, despite Catamaran’s

apparent attempt to have this Court conduct a premature and improper trial on the merits of its

potential defenses to an enforcement action – should the Attorney General ultimately decide to

bring one. Because the Attorney General has met its burden on the threshold question before this

Court, Catamaran should be compelled to respond to the Investigative Subpoena, which is attached

hereto as Exhibit A.

Catamaran’s Petition reveals the lengths to which Catamaran is willing to go in an effort

to avoid the Attorney General’s scrutiny. The Petition is yet another attempt to circumvent the

Attorney General’s investigation. On December 5, 2017, the Attorney General issued the

Investigative Subpoena, after Catamaran ignored all efforts by the Attorney General to discuss the

consumer complaints. The Attorney General attempted several times to establish lines of

communication with Catamaran and obtained no cooperation.

1 Catamaran admits to doubling its rates “during a hurricane emergency event.” Petition at 15-18. 2 The Attorney General has received several complaints from consumers complaining about Catamaran’s business practices.

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To avoid compliance, Catamaran narrowly and erroneously construes the Attorney

General’s current investigation in a self-serving and misleading fashion. It is evident from the face

of the Investigative Subpoena that the Attorney General is investigating potential violations under

Section 501.204, Florida Statutes, governing unlawful acts and practices, including unfair methods

of competition, unconscionable acts and practices, and unfair or deceptive acts and practices. The

Investigative Subpoena also references Section 501.160, Florida Statutes (the “Price Gouging

Statute”), which provides that a violation of the Price Gouging Statute constitutes a per se violation

of FDUTPA. FDUTPA is not limited to a violation of a specific law, and one actionable claim is

not subsumed by another. See §501.203(3), Fla. Stat. (providing a series of bases for violations of

FDUTPA); See §501.213, Fla. Stat. (providing that remedies under FDUTPA are “in addition to

remedies otherwise available for the same conduct under state or local law”). Catamaran points to

no authority, because there is none, providing that if the Attorney General invokes the Price

Gouging Statute, it is foreclosed as a matter of law from pursuing a broader investigation into

unfair, deceptive, or otherwise unconscionable acts or practices. See §501.204, Fla. Stat. Further,

the Attorney General has the authority to investigate any business or industry where there is a

reason to believe that a violation of FDUTPA has occurred or is occurring.

The only question before the Court is whether the Attorney General is authorized in issuing

the Investigative Subpoena. Because the Attorney General has reason to believe that Catamaran

has engaged in, or is engaging in, an act or practice that violates FDUTPA, the Investigative

Subpoena is valid. The Attorney General respectfully requests this Court to compel Catamaran to

produce the documents requested.

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ARGUMENT I. The Investigative Subpoena is Valid as a Matter of Law The Attorney General has reason to believe that Catamaran engaged in unfair conduct by

increasing its boat storage rates during a declared state of emergency. As discussed herein, Florida

law affords the Attorney General the power to issue investigative subpoenas, along with other

tools, to investigate when it believes that a person has engaged in, or is engaging in, unfair,

deceptive, and/or unconscionable conduct.

A. The Attorney General Had a Reasonable Basis to Issue the Investigative Subpoena; Therefore, Catamaran Should be Compelled to Comply Pursuant to Section 501.203(2), Florida Statutes, the Attorney General is an “enforcing

authority” under FDUTPA. FDUTPA prohibits “[u]nfair methods of competition, unconscionable

acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce.”

§501.204(1), Fla. Stat. Although often thought of as a consumer-protection statute, it is not so

limited. FDUTPA applies to “any act or practice occurring ‘in the conduct of any trade or

commerce.’” Beacon Prop. Mgmt., Inc. v. PNR, Inc., 890 So. 2d 274, 278 (Fla. 4th DCA 2004)

(quoting §501.204(1), Fla. Stat.) (emphasis added). FDUTPA’s prohibition on unfair, deceptive,

and unconscionable acts is “extremely broad.” Democratic Republic of the Congo v. Air Capital

Grp., LLC, 614 F. App’x 460, 469 (11th Cir. 2015); PNR, Inc. v. Beacon Prop. Mgmt., Inc., 842

So. 2d 773, 777, n.2 (Fla. 2003); Joyeria Paris, SRL v. Gus & Eric Custom Servs., Inc., 2013 WL

6633175, at *4-5 (S.D. Fla. Dec. 17, 2013) (collecting authority).

According to Section 501.206(1), Florida Statutes, “[i]f, by his or her own inquiry or as a

result of complaints, the enforcing authority has reason to believe that a person has engaged in, or

is engaging in, an act or practice that violates this part, he or she may administer oaths and

affirmations, subpoena witnesses or matter, and collect evidence.” (Emphasis added).

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The Attorney General had a reasonable basis to issue the Investigative Subpoena based

upon complaints received from consumers regarding increased rates, which Catamaran’s Petition

freely admits. Petition at 15-18. The Attorney General may use its investigative powers to

subpoena records that will aid it in determining whether further action is required. State, Dept. of

Legal Affairs v. Jackson, 576 So. 2d 864, 865 (Fla. 3d DCA 1991). The analysis in Jackson proves

instructive in this case. In Jackson, the Attorney General issued subpoenas seeking “various

records to determine whether Jackson’s business practices were in violation of [FDUTPA].” Id.

Jackson sought to set aside the subpoenas on the basis that a certain provision of FDUTPA did not

apply to his activities. Id. Overturning the trial court’s decision, the Third District Court of Appeal

determined that the Attorney General has a “right to a careful review of the documents” sought

through an investigative subpoena. Id. “It may be the case that, after a careful review of the

documents and records subpoenaed, the [Attorney General] might choose not to pursue further

actions regarding Jackson’s activities. Id. (citing R.W. v. Department of Professional Regulation,

Board of Osteopathic Medical Examiners, 566 So. 2d 26 (Fla. 3d DCA 1990); Winfield v. Div. of

Pari-Mutuel Wagering, Department of Business Regulation, 477 So. 2d 544 (Fla. 1985)).

We need not render a final determination at this juncture as to whether or not Jackson’s activities constitute “consumer transactions” as contemplated by Section 501.203(1). We need only consider whether the Department is entitled to investigate Jackson’s activities for the purpose of making further determinations. Accordingly, we find that the Department is entitled to investigate the complaints that it has received and is well within its right to issue the subpoenas to further this purpose.

Jackson, 576 So. 2d at 865.

As in Jackson, the Attorney General is entitled to investigate Catamaran’s activities for the purpose

of making further determinations.

Catamaran relies heavily on the courts’ decisions in Major League Baseball and Check ‘n

Go for the proposition that an agency’s subpoena power does not extend to “fishing expeditions.”

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See Petition at 7-13 (citing Major League Baseball v. Crist, 331 F.3d 1177 (11th Cir. 2001); Check

‘n Go of Florida, Inc. v. State, 790 So. 2d 454 (Fla. 5th DCA 2001)). In Check ‘n Go, the court

determined that the applicable test regarding the Attorney General’s authority to issue an

investigative subpoena “is whether under the circumstances a reasonably prudent person would be

warranted in the belief that a person or other enterprise who is the subject of the subpoena has

engaged in, or is engaging in violation of the [law]” Check ‘n Go at 458; see also Petition at 8

(quoting Check ‘n Go at 458) (emphasis added). Ultimately the court determined that the materials

available to the Attorney General would lead a reasonable person to conclude that the behavior

“might well constitute an activity” that violated the law. Id. at 459. The Attorney General is

“accorded the flexibility to review” the transactions at issue to determine whether the statutes in

question were violated. Id.

Here, the Attorney General has received ample information to support its reasonable belief

that Catamaran has engaged in, or is engaging in, an act or practice that violates FDUTPA.

§501.206(1), Fla. Stat.; see also Jackson, 576 So. 2d at 865. Because the purpose of the Attorney

General is to “discover and procure evidence, and not to prove a pending charge or

complaint…more latitude is allowed in considering the foundation of the subpoena.” Check ‘n Go,

790 So. 2d at 458 (assessing an investigative subpoena issued by the Attorney General).

The Attorney General had sufficient information to afford it a reasonable basis to issue the

Investigative Subpoena, which is the only question before this Court at this juncture. Catamaran

should be compelled to comply with the Investigative Subpoena.

B. The Investigative Subpoena is Not Overbroad or Unreasonable In addition to the Attorney General having a reasonable basis to issue the Investigative

Subpoena, the Investigative Subpoena itself is also reasonable because the information sough

through the subpoena is relevant to the investigation and described with requisite particularity and

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definiteness. See Check ‘n Go, 790 So. 2d at 459-60. Under Florida law, an investigative “subpoena

must be ‘properly limited in scope, relevant in purpose, and specific in directive,’ in order to not

be unduly burdensome.” Id. at 460 (citing Dean v. State, 478 So. 2d 38, 40 (Fla. 1985)). Here, the

Attorney General has limited the materials sought to particular transactions during a specific time

period. See Ex. A. Catamaran’s Petition mischaracterizes the information sought in the

Investigative Subpoena as irrelevant, overbroad, and unduly burdensome which is simply baffling

when the Investigative Subpoena is “limited in scope, relevant in purpose, and specific in

directive.” Check ‘n Go at 460. The Investigative Subpoena is valid and Catamaran should be

compelled to comply with it.

C. Catamaran Has No Excuse from Compliance with the Investigative Subpoena The Investigative Subpoena states the following:

THIS INVESTIGATIVE SUBPOENA DUCES TECUM is issued pursuant to the Florida Deceptive and Unfair Trade Practices Act, Chapter 501, Parts I and II, Florida Statutes, in the course and authority of an official investigation. The general purpose and scope of this investigation, pursuant to Chapter 501, Parts I and II, Florida Statutes, extends to possible price gouging and the unfair and/or deceptive trade practices, which involve the business practices of A Boat 4 Fun, Inc. d.b.a Catamaran Boat Yard. Your attention is directed to Sections 501.160, 501.204, and 501.206 (2017), Florida Statutes, printed and attached hereto.

Catamaran makes several arguments in an attempt to circumvent the Attorney General’s

investigation and avoid compliance with the Investigative Subpoena. First, Catamaran cites

inapposite law to argue that the Attorney General lacks the authority to issue the Investigative

Subpoena. Second, Catamaran seeks to constrain the Attorney General’s investigation to price

gouging, ignoring the Attorney General’s broad authority under FDUTPA and the fact that the

Investigative Subpoena was expressly issued pursuant to both Section 501.204 and Section

501.160, Florida Statutes. Third, Catamaran mischaracterizes the Attorney General’s investigation

as a converted breach of contract claim. Each of Catamaran’s arguments fails.

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1. Catamaran’s Business Practices Fall Within the Scope of FDUTPA.

As discussed above, the Attorney General clearly meets the applicable test to authorize the

Investigative Subpoena. See §501.206(1), Fla. Stat. Catamaran appears to argue that the Attorney

General lacks the statutory authority to issue the Investigative Subpoena. Catamaran cites cases

wherein the scrutinized business could not be reached by the statute at issue. Unlike in the

inapposite cases cited, no legal authority shields Catamaran from compliance with the

Investigative Subpoena.

Catamaran cites Major League Baseball v. Crist, 331 F.3d 1177, 1179 (11th Cir. 2003) and

the baseball antitrust exemption, which provides that the “business of baseball” enjoys an

exemption from federal antitrust laws. See Petition at 7-10. At issue in Major League Baseball

were several civil investigations demands (“CIDs”)3 issued by the Attorney General’s authority

under the Florida antitrust statute. Id. The court reasoned that the vote to reduce the number of

teams fell within the “business of baseball,” and that the antitrust exemption therefore applied. Id.

Thus, the court determined that it “makes no sense…to allow an investigation into conduct that we

know is perfectly legal before the investigation commences.” Id. at 1187. An investigative agency

is prohibited from conducting “fishing expeditions” premised solely upon “legal activity.” Id. at

1188. Application of the baseball exemption caused the investigated behavior to fall outside of the

antitrust statute. In other words, as a matter of law, no actionable violation could have occurred

regardless of what the Attorney General’s investigation yielded. No similar exemption exists here.

Aside from citing Major League Baseball for general, uncontroversial principles, it is unclear how

Catamaran means to show that its behavior cannot be reached by FDUTPA.

3 The Investigative Subpoena was issued by the Attorney General’s Consumer Protection Division, which does not issue civil investigation demands.

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Similarly misdirected, Catamaran cites two cases involving mortgage foreclosure firms,

which stand for the proposition that an activity must fall within the rubric of “trade or commerce”

for FDUTPA to apply. See Petition 11-12 (citing State, Office of the Attorney General v. Shapiro

& Fishman, LLP, 59 So. 3d 353, 356 (Fla. 4th DCA 2011); Law Office of David J. Stern, P.A. v.

State, 83 So. 3d 847, 849 (Fla. 4th DCA 2011)). Each of these cases involves investigations into

law firms that attempted to collect debts on residential mortgage loans through foreclosure

proceedings. Shapiro, 59 So. 3d at 355; Stern, 83 So. 3d at 848-49. In each case, the Fourth District

Court of Appeal relied upon Kelly v. Palmer, Reifler, & Associates, P.A., 681 F. Supp. 2d 1356

(S.D. Fla. 2010) holding that a law firm’s acts “occurring during the exercise of a legal remedy”

did not occur in “trade or commerce.” Shapiro, 59 So. 3d at 356; Stern, 83 So. 3d at 850.

In the instant case, Catamaran does not, because it cannot, argue that its acts fall outside of

trade or commerce. Indeed, the Petition itself establishes that Catamaran engages in trade and

commerce. See, e.g., Petition at 2-4. “Since it opened business, [Catamaran] has stored and

maintained and/or serviced thousands vessels for the consumers.” See, Petition at 3.

As a matter of law, FDUTPA reaches Catamaran’s acts and practices as framed by the

Investigative Subpoena. Catamaran has failed to offer any convincing argument that would limit

the Attorney General’s statutory authority to issue the Investigative Subpoena.

2. The Attorney General is Not Limited to Investigating Alleged Price Gouging.

Catamaran purposely misconstrues the scope of the Investigative Subpoena as seeking

documents “in an ill-conceived investigation” to determine “whether [Catamaran’s] contract

calling for a specific rate per foot…violated the Price Gouging law, and thus violated FDUTPA.

That is the only violation of FDUTPA which the Subpoena reflects is being investigated by the

Attorney General.” Petition at 3-5. Catamaran’s presumption is wrong on at least two fronts. First,

the Attorney General has not limited its investigation to a per se violation, namely the Price

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Gouging Statute. Second, the Attorney General’s investigation is not focused exclusively on

Catamaran’s “contract calling for a specific rate per foot.” Id.

FDUTPA broadly makes “[u]nfair methods of competition, unconscionable acts or

practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce”

unlawful. §501.204(1), Fla. Stat. (emphasis added); Millennium Communications & Fulfillment,

Inc. v. Office of the Attorney General, 761 So. 2d 1256, 1260 (Fla. 3d DCA 2000); see also

§501.203(3)(b), Fla. Stat. (FDUTPA violations may be based on “[t]he standards of unfairness and

deception set forth and interpreted by the Federal Trade Commission or the federal courts”);

Millennium Communications & Fulfillment, Inc. at 1263; Dept. of Legal Affairs v. Fathers and

Sons Moving and Storage, Inc., 643 So. 2d 22, 24 (Fla. 4th DCA 1994) (FDUTPA is liberally

construed to protect the consuming public from those who engage in deceptive or unfair acts or

practices in trade or commerce); §501.211, Fla. Stat. (providing for cumulative remedies with other

statutes).

While a FDUTPA violation may be based on a specific law or statute that “proscribes unfair

methods of competition, or unfair, deceptive or unconscionable acts or practices” (such as the Price

Gouging Statute), an act need not violate a specific law to constitute a FDUTPA violation. See

§501.203(3), Fla. Stat. (providing a series of bases for violations of FDUTPA), see also Fathers

and Sons, 643 So. 2d at 24 (holding that an act need not violate a specific rule or regulation to

violate FDUTPA); Hap v. Toll Jupiter Ltd. P’ship, 07-81027-CIV, 2009 WL 187938, at *9 (S.D.

Fla. Jan. 27, 2009) (“FDUTPA can be violated in two ways: (1) a per se violation premised on the

violation of another law proscribing unfair or deceptive practice and (2) adopting an unfair or

deceptive practice”). The Investigative Subpoena references the Price Gouging Statute as well as

Section 501.204, Florida Statutes, which governs violations based on unfair or deceptive acts and

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practices. See Ex. A. The Attorney General may rely upon more than one statute to ground its

investigation, and Catamaran can point to no law to the contrary. See §501.203(3), Fla. Stat.

The Price Gouging Statute addresses the charging of unconscionable prices during a

declared state of emergency and states:

Upon a declaration of state of emergency by the Governor, it is unlawful and a violation of s. 501.204 for a person or her or his agent or employee to rent or sell or offer to rent or sell at an unconscionable price within the area for which the state of emergency is declared, any essential commodity including, but not limited to, supplies, services, provisions, or equipment that is necessary for consumption or use as a direct result of the emergency (emphasis added). It is unlawful and a violation of s. 501.204 for any person to impose unconscionable prices for the rental or lease of any dwelling unit or self-storage facility during a period of declared state of emergency.

§501.160(2)-(3), Fla. Stat.

Catamaran argues, in a self-serving manner, the Investigative Subpoena must be quashed

because Catamaran has not violated the Price Gouging Statute – a specific law – and the Attorney

General cannot avail itself of the more general provisions of FDUTPA. In support of this

contention, Catamaran misconstrues statutory construction and argues that “there can be no

violation of FDUTPA if a violation of the Price Gouging law does not exist.” Petition at 14. Under

Florida law, a specific statute overrides a more general, comprehensive statute that covers the same

subject matter only when a conflict between the statutes creates ambiguity. DMB Inv. Trust v.

Islamorada, Village of Islands, 225 So. 3d 312, 317-18 (Fla. 3d DCA 2017); see also Giamberini

v. Department of Financial Services, 162 So. 3d 1133, 1136 (Fla. 4th DCA 2015) (quoting Adams

v. Culver, 111 So. 2d 665, 667 (Fla. 1959)) (“When statutes appear to conflict, however, a specific

statute ‘covering a particular subject matter is controlling over a general statutory provision

covering the same and other subjects in general terms.”’). Thus, a specific statute supersedes a

more general statute only to the extent provisions of the two statutes clearly conflict. There is no

conflict between the Price Gouging Statute and FDUTPA. Indeed, the Price Gouging Statute

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expressly references Section 501.204, proscribing unfair or deceptive acts or practices. Nor is there

any support for the proposition that charging an unconscionable price during a declared state of

emergency is a violation of the Price Gouging Statute (§501.160, Fla. Stat.) to the exclusion of

FDUTPA (§§501.201-501.213, Fla. Stat.). In fact, the plain meaning of the statutory text

demonstrates that the legislative intent was to subject conduct under the Price Gouging Statute to

the provisions of FDUTPA. See §501.160(2)-(3), Fla. Stat. (including provisions establishing the

jurisdiction of the Enforcing Authority (§501.206), affording relief, (§501.207), and imposing civil

penalties, (§501.2075)).

The Attorney General is authorized to investigate potential violations based on the Price

Gouging Statute, as well as any other violations as set forth in FDUTPA. Catamaran must comply

with the Investigative Subpoena.

3. The Court is Not Presently Adjudicating Whether a Violation Has Occurred.

Catamaran’s line of argument that it has not charged an unconscionable price is misguided

and premature. Petition at 2-3 (“Far from seeking, ‘unconscionable’ prices from the residents and

visitors of Monroe County it serves, [Catamaran’s] prices are consistent with market conditions

created by the impact of the disastrous Hurricane Irma.”) At this juncture, the Court need not

determine whether a violation has occurred. Jackson, 576 So. 2d at 865. Rather, the query is

whether the Attorney General has a reasonable belief that a person has engaged in, or in engaging

in, a practice that violates FDUTPA. §501.206(1), Fla. Stat. The Attorney General has reason to

believe that a violation has occurred, and the Investigative Subpoena is thus valid.

4. The Attorney General is Not Pursuing a Breach of Contract Claim.

Catamaran’s next effort in its attempt to circumvent the Attorney General’s investigation

is to mischaracterize the Attorney General’s investigation as a breach of contract issue. The

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Attorney General is investigating potentially unfair or deceptive acts and practices, as it is entitled

to do.

In Florida, “[t]o the extent an action giving rise to a breach of contract or breach of lease

may also constitute an unfair or deceptive act, such claim is and has always been cognizable under

the FDUTPA.” PNR, Inc., 842 So. 2d 777 n.2. Thus, while a mere breach of contract cannot be

converted into a FDUTPA claim, unfair or deceptive conduct that gives rise to the breach is subject

to FDUTPA. Rebman v. Follett Higher Education Group, Inc., 575 F. Supp. 2d 1272 (M.D. Fla.

2008); see also Orkin Exterminating Co., Inc. v. F.T.C., 849 F.2d 1354, 1367 (11th Cir. 1988)

(upholding FTC order finding defendant’s unilateral breach of 200,000 consumer contracts to be

unfair).4

Catamaran admits it doubled its rates during a hurricane emergency event. See Petition at

15-18. Further, Catamaran alleges the Attorney General’s “investigation boils down to the

Attorney General’s suggestion that [Catamaran] cannot enter into a contract with its customers

where the pricing or fees or charges are not acceptable to the Attorney General.” Id.

Catamaran mischaracterizes the Attorney General’s investigation as a breach of contract issue. The

Attorney General is not pursuing a breach of contract claim. As FDUTPA’s enforcing authority,

the Attorney General is authorized to investigate the facts and circumstances surrounding

Catamaran’s admitted conduct to determine if further action is required.

D. Catamaran is Not Entitled to an Evidentiary Hearing

On the one hand, Catamaran argues throughout the Petition that the Investigative Subpoena

must be quashed as a matter of law. Petition at 5, 6, 12, 15, 18, 23. On the other hand, Catamaran

demands an evidentiary hearing that would require the Attorney General to produce the very

4 Under FDUTPA, due consideration and great weight is given to interpretations of the Federal Trade Commission and the federal courts as to whether an act or practice is unfair or deceptive. §501.204(2), Fla. Stat.

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documents it seeks from Catamaran. Petition at 1-3, 6, 23, 24. Catamaran’s request for a premature

evidentiary hearing is yet one more attempt in trying to avoid the Attorney General’s scrutiny and

it will essentially mean trying the merits of this case prematurely. The only issue for the Court to

decide is whether the Attorney General’s investigation is valid pursuant to the conditions of

Section 501.206(1) of the Florida Statutes. The Attorney General is under no obligation to present

evidence upon which to rest its reasonable belief that a violation has occurred. Nevertheless, the

information provided herein established a record sufficient to show a reasonable basis to pursue

an investigation.

Unable to provide any statutory support for its request for an evidentiary hearing,

Catamaran cites a single, unreported case wherein a judge in Leon County held an evidentiary

hearing to establish the Attorney General’s foundation to pursue information by investigative

subpoena. See Petition at 19-20 (citing WAM IT Technologies, LLC d/b/a WAM IT, LLC,

Petitioner, v. State of Florida, Office of the Attorney General, Department of Legal Affairs,

Respondent, Leon County Circuit Court Case No.: 2013 CA 2063.)

A more fulsome review of the arguments in Wam It reveals that Wam It relied on the

Communications Decency Act to argue that federal law preempted an action against Wam It. See

Notice of Filing of Petitioner’s Statement of Issues to Be Decided by the Court, attached hereto as

Exhibit B. In this way, the question presented in Wam It is akin to Major League Baseball

discussed above. If the court had determined that the Communications Decency Act precluded a

valid action against Wam It, then perhaps the Attorney General could not have pursued an

investigation. Therefore, whether Wam It conducted business that was covered by the

Communications Decency Act may have required the court to hear evidence. Ultimately, the court

ordered Wam It to produce responsive materials, denying the Petition to Quash and granting the

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Attorney General’s Motion to Compel. The September 16, 2013 Order is attached hereto as

Exhibit C.

Unlike in Wam It or Major League Baseball, Catamaran lacks any argument that an

applicable exemption exists that would render the fruits of any investigation moot. Stated

differently and as discussed above, Catamaran cannot establish as a matter of law that no actionable

cause of action exists. See Jackson, 576 So. 2d at 865; Check ‘n Go, 790 So. 2d at 458.

For each and all of the reasons set forth above, the Investigative Subpoena is valid, the

Petition to Quash should be denied, and Catamaran should be compelled to comply with the

Investigative Subpoena.

II. Catamaran’s Objections to the Investigative Subpoena Are Not Properly Before The Court Catamaran requests that, if the Investigative Subpoena is deemed valid, that it be modified

and narrowed. Petition at 6, 7, 12, 13, 21-24. Catamaran generally asserts four categories of

objections (1) that some requests are overbroad; (2) that some requests seek confidential,

proprietary or trade secret information; (3) that some requests seek irrelevant information; and (4)

that documents seeking information from August 4, 2017 through January 12, 2018, are

objectionable based on each of the three categories of objections described above.

At the outset, Catamaran’s objections violate Rule 1.350(b) of the Florida Rules of Civil

Procedure as it is unclear as to which specific requests each category of objection applies. For

example, with respect to Catamaran’s relevancy objection, Catamaran requests an evidentiary

hearing to determine what areas of inquiry will be allowed by the Court. Again, Catamaran cannot

have a trial on the merits before the Attorney General has even had the opportunity to review

information yielded from an investigation. Catamaran has failed to demonstrate that any wholesale

bar exists as a matter of law to the Attorney General’s investigation. In contrast, the Attorney

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General has demonstrated that it has a reason to believe that violative conduct has occurred.

Catamaran is therefore not entitled to an evidentiary hearing, and certainly not a hearing whereby

the Attorney General’s investigation is limited due to any lack of evidence caused by Catamaran’s

refusal to produce any materials. Such a strained argument turns civil procedure on its head.

To the extent Catamaran argues that the information sought by the Investigative Subpoena

is confidential, proprietary, or trade secret, Florida law establishes a process to protect such

information from public disclosure, as referenced in the Investigative Subpoena. See Ex. A (citing

§§688.002(4)(b), 812.081(1)(c), 815.045, Fla. Stat.) Section 815.045 of the Florida Statutes

specifically exempts trade secrets from public disclosure. See, e.g., James, Hoyer, Newcomer,

Smiljanich & Yanchunis, P.A. v. Rodale, Inc., 41 So. 3d 386, 388 (Fla. 1st DCA 2010); Sepro

Corp. v. Florida Dept. of Envtl. Prot., 839 So. 2d 781, 783 (Fla. 1st DCA 2003). The process in

place would prevent the disclosure of any information deemed sensitive by the Court. Catamaran’s

improper objections do not absolve it of its obligation to comply with the Investigative Subpoena

and are simply excuses in an attempt to circumvent the Attorney General’s investigation.

CONCLUSION

WHEREFORE, Respondent, State of Florida, Office of the Attorney General, Department

of Legal Affairs, respectfully requests that this Court enter an Order (1) denying Catamaran’s

Petition to Quash, or Alternatively to Modify, the Investigative Subpoena Duces Tecum, (2)

granting the Attorney General’s Motion for Order Compelling Catamaran’s Compliance with the

Attorney General’s Investigative Subpoena Duces Tecum, and (3) granting any such further relief

as this Court deems just and proper. A proposed Order is attached hereto as Exhibit D.

Dated: February 19, 2018. Respectfully Submitted,

PAMELA JO BONDI ATTORNEY GENERAL

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/s/ Viviana Escobar

Viviana Escobar Assistant Attorney General

Florida Bar No. 0106610 Office of the Attorney General Consumer Protection Division One SE Third Avenue, Suite 900 Miami, Florida 33131 Telephone: (786) 792-6251 Facsimile: (305) 349-1403 Viviana.Escobar@myfloridalegal.com

mailto:Viviana.Escobar@myfloridalegal.com

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing document was filed

through the Florida Courts E-Filing Portal, which has simultaneously effected service via email to

John A. Jabro, Esq. (jjabro@aol.com), Counsel for Petitioner, on this 19th day of February 2018.

In addition, a copy of the foregoing document was sent via United States mail and email this 19th

day of February 2018, to:

John A. Jabro, Esq. 90311 Overseas Highway, Suite B Tavernier, FL 33070 jjabro@aol.com keyslegal@aol.com Counsel for Petitioner A Boat 4 Fun, Inc.

/s/ Viviana Escobar Viviana Escobar Assistant Attorney General

mailto:jjabro@aol.commailto:jjabro@aol.commailto:keyslegal@aol.com

Response to Petition to Quash - 2-19-2018Exhibits to Response to Pet. to Quash - 2-19-2018Exhibits to Response to Pet. to Quash - 2-8-2018Proposed Order re Petition to Quash