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Robert Crewe and Robert Maurice, On Behalf of Themselves and All v. Rich Dad Education

August 2, 2012

ROBERT CREWE AND ROBERT MAURICE, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
RICH DAD EDUCATION, LLC, RICH GLOBAL, LLC, RICH DAD OPERATING CO., LLC, CASHFLOW TECHNOLOGIES, INC.,
TIGRENT INC., TIGRENT LEARNING INC. F/K/A WEALTH INTELLIGENCE ACADEMY, INC.,
TIGRENT BRANDS INC., ROBERT KIYOSAKI, AN INDIVIDUAL,
MARC HRISKO, AN INDIVIDUAL, CHRISTOPHER BRIGGS, AN INDIVIDUAL,
SCOTT STEWART, AN INDIVIDUAL,
WAYNE MORGAN, AN INDIVIDUAL, AND DOES # 1-50, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Paul A. Engelmayer, District Judge:

OPINION AND ORDER

Robert Crewe and Robert Maurice, the plaintiffs in this putative class action, bring various state law claims against corporate defendants Rich Dad Education, LLC ("RDE"), Rich Dad Operating Co., LLC ("RDO"), Rich Global, LLC ("RG"), Cashflow Technologies, Inc., Tigrent Inc. ("TI"), Tigrent Learning Inc. ("TLI"), and Tigrent Brands Inc. ("TBI"), and individual defendants Robert Kiyosaki, Christopher Briggs, Scott Stewart, Marc Hrisko, Wayne Morgan, and John Does 1 through 50 (collectively, "defendants"). In essence, plaintiffs allege that they paid for and attended different stages of a "stock success training program" sponsored and/or conducted by defendants, which did not provide the actual training or education that had been promised, but instead had the sole purpose to "up-sell 'students' into additional useless but more-expensive coursework." Amended Complaint ("Compl.") ¶ 2. Plaintiffs' state law claims include breach of contract, fraud, and violations of the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA"), FLA. STAT. § 501.201, et seq.

Defendants move to dismiss on numerous grounds. For the reasons stated in the following, the Court (1) dismisses Crewe's lawsuit, based on a binding arbitration clause in his written contract with RDE; and (2) dismisses Maurice's claims, based on the binding forum-selection clause in his contract with RDE, in which he agreed to bring any action arising under the agreement in designated state or federal courts in Florida.

I. Background*fn1

A. The Parties

Plaintiff Crewe is a resident of the Bronx, New York. Compl. ¶ 12. Plaintiff Maurice is a resident of Georgia. Id. ¶ 13.

Defendants RDE and RG are Wyoming limited liability companies with principal places of business in Cape Coral, Florida, and Jackson, Wyoming, respectively. Id. ¶¶ 14--15. Defendant RDO is a Nevada limited liability corporation with a principal place of business in Minden, Nevada. Id. ¶ 16. Defendant CF is a Nevada corporation with a principal place of business in Scottsdale, Arizona. Id. ¶ 17. Defendants TI and TLI are, respectively a Colorado corporation and a Florida corporation, both with principal places of business in Cape Coral, Florida. Id. ¶¶ 18, 19. Defendant TBI is a Florida corporation with a principal place of business in Cape Coral, Florida. Id. ¶ 20. Defendant Briggs is a citizen of Florida. Id. ¶ 21. Defendant Hrisko is a citizen of Virginia. Id. ¶ 23. Defendant Kiyosaki is a citizen and resident of Arizona. Id. ¶ 24. Defendant Morgan is a citizen of Texas. Id. ¶ 25.

B. Crewe's Experience

On March 7, 2011, Crewe received a standardized email from defendants. Compl. ¶ 68. The email advertised a free Stock Success Workshop. The email promised that workshop attendees would "discover how to 'Manage Your Own Money' and 'Protect Your Profits & Reduce Your Risk.'" Id. The email also promised that "This 2-hour workshop can teach you how you can trade better -- safer -- smarter . . . even if you've never bought or sold stock before!" Id. ¶ 68 (emphasis in original).

Relying on those representations, Crewe decided to attend a free Stock Success Workshop. He did so, on March 9, 2011, in New York City. Id. ¶ 69. The workshop was sponsored by defendants. Id. The workshop was led by defendant Briggs, who was identified as a trainer. Briggs introduced himself as a "professional 'swing trader' and a 'market expert'"; Briggs, however, did not disclose his specific credentials during the workshop, and Crewe alleges that, in fact, Briggs lacks any relevant qualifications. Id. ¶ 75.

During the workshop, Briggs did not teach Crewe or the other attendees any "wealth building techniques." Instead, Briggs broadly discussed "assets and liabilities," identifying "ignorance" as the chief liability and "education as the chief asset," and he repeatedly pitched attendees to enhance their "education" by enrolling in defendants' three-day Rich Dad Education Stock Success training program later that month. Id. ¶¶ 82--83. At various points, Briggs told attendees that they would "be able to make $1,000 consistently trading stock," and that the three-day training program was "where we teach you your financial education." Id. ¶ 86. Briggs also told attendees that if they signed up for the three-day training program that day, it would cost only $199, but if they waited until the following day, the training would cost $595. Id. ¶ 88.

Also during the workshop, defendants gave Crewe promotional materials relating to the three-day training program. One such pamphlet, the "Stock Success 3-Day Training Pamphlet," stated:

Your STOCK SUCCESS Training Instructors are trainers in the true sense of the word. We don't hand you a book and send you on your way, and we don't believe in teaching abstract "theory." Instead, our trainers are able to teach you "reality" from their years of experience trading in the financial markets.

Id. ¶ 77. Another pamphlet stated:

Your 3-Day STOCK SUCCESS training is designed to help you effectively pursue the many wealth-building opportunities provided by the stock and options market. You now have the entire Rich Dad education team to share their knowledge and experience in the markets with you. They are here to help you turn your desire for more into a reality.

Your 3-Day Training is comprehensive. It will cover everything from thinking like the rich think to developing a personal plan and executing on that plan.

WHAT YOU'LL LEARN AT THE STOCK SUCCESS TRAINING . . . This intensive, 3-day Training curriculum focuses on establishing you as an educated investor. . . . By employing numerous strategies, you'll learn how you can create profit potential in every type of market. . . . By raising your financial IQ, you'll be able to use one or several trading strategies to meet your specific goals and achieve your idea of financial success. . . . Regardless, you'll leave the STOCK SUCCESS Training Academy armed with the knowledge and confidence to get started in the trading business.

Id. ¶ 1.

Despite the fact that no training had been provided during the free workshop, Crewe enrolled in the three-day training program. He did so based on defendants' representations. Crewe enrolled pursuant to a written one-page agreement with RDE (the "Agreement"), which he executed on March 9, 2011. See May Decl. Ex. 1, at p. 1. Pursuant to the Agreement, Crewe paid RDE $199. See id.; Compl. ¶ 79.

The Agreement states that it incorporates "the accompanying Terms and Conditions," and directs signatories to "Read the Agreement and the accompanying Terms and Conditions in their entirety before signing." Agreement at 1. The Agreement adds:

You are entitled to a copy of the Agreement and the Terms and Conditions. Field Personnel do not have authority to change the terms of the Agreement or the Terms of Conditions, except as expressly authorized to do so herein. THE ACCOMPANYING TERMS AND CONDITIONS CONTAIN A DISPUTE RESOLUTION CLAUSE. PLEASE SEE SECTION ENTITLED CHOICE OF LAW/DISPUTE RESOLUTION.

Id. The four-page Terms and Conditions document, in turn, contains various provisions. See May Decl. Ex. 1, at pp. 4--7. These include a warning about the risks presented by financial investing, a disclaimer of responsibility as to claims by third parties, a limitation-of-liability provision, and a disclaimer that the training program "is not designed or intended to qualify you for employment. Our curriculum is avocational in nature and is intended for the purpose of the accumulation of wealth by, and the personal enrichment, development and enjoyment of, our students." Id. at p. 5.(emphasis removed from original).

The Terms and Conditions also includes the following provision, important here: CHOICE OF LAW / DISPUTE RESOLUTION The Agreement and these Terms and Conditions shall be deemed to have been made in the State of Florida. We agree that any Dispute (as defined below) between us shall be resolved exclusively and finally by binding arbitration under the Federal Arbitration Act administered by the National Arbitration Forum (NAF) under the Code of Procedure in effect when the claim is filed. You agree that we are entering into this arbitration agreement in connection with a transaction involving interstate commerce. The arbitration shall be held by submission of documents, by telephone, or online. Such arbitration shall be conducted under NAF rules, except as otherwise provided below. We will agree on another binding arbitration forum if NAF ceases operations. The arbitration will be conducted before a single arbitrator, and will be limited solely to the Dispute between you and us. The arbitration, or any portion of it, will not be consolidated with any other arbitration and will not be conducted on a class-wide or class-action basis. The arbitrator's decision shall be set forth in writing and shall set forth the essential findings and conclusions upon which the decision is based. All determinations as to the scope, enforceability, and effect of this Dispute Resolution section shall be decided by the arbitrator and not by a court. Any decision rendered in such arbitration proceedings will be final and binding on the parties, and judgment may be entered thereon in any court of competent jurisdiction. In any arbitration action or court proceeding to compel arbitration to enforce the terms of this paragraph or to enforce the result of any arbitration conducted hereunder, the prevailing party shall be entitled to obtain all reasonable costs, including its reasonable attorney fees at the trial and appellate levels. Notwithstanding, the parties agree that the maximum award that the arbitrator can award in this binding arbitration shall not exceed the amount paid by you to us under the Agreement plus the fees and costs provided for in this paragraph. No party shall be entitled to recovery for any indirect and/or consequential damages, including any incidental expenses associated with attending an in-person live training or in connection with arbitrating a claim hereunder. The arbitrator shall have no authority or power to modify or alter any term or condition of the Agreement or these Terms and Conditions or to render any award that by its terms has the effect of altering or modifying any express term or condition of the Agreement or these Terms and Conditions. The parties further agree that all proceedings and documents prepared in connection with any Dispute shall be confidential and, unless otherwise required by law or legal process, the subject matter of the same shall not be disclosed to any person other than the parties to the proceedings, their counsel, witnesses and experts, and the arbitrator. You understand that, in the absence of this provision, you would have had a right to litigate disputes through a court, including the right to litigate claims before a jury and on a class-wide or class-action basis, and that you have expressly and knowingly waived those rights and agreed to resolve any Disputes through binding arbitration in accordance with the provisions of this paragraph.For the purposes of this provision, the term "Dispute" means any dispute, controversy, or claim arising out of or relating to (i) the Agreement or these Terms and Conditions, their interpretation, or the breach, termination, applicability, or validity thereof, (ii) the related order for, purchase, delivery, receipt or use of any product or service from us, or (iii) any other dispute arising out of or relating to the relationship between you and us. Information may be obtained from the NAF online at www.arbforum.com, by calling 800-474-2371, or writing to P.O. Box 50191, Minneapolis, MN 55405. The terms "Company," "we," "us," "our," or "ours" as used only in this paragraph shall include our parent entity, subsidiaries, affiliates, officers, directors, shareholders, employees, agents, licensees, successors, and assigns.

Id. at pp. 4--5 (first and second emphasis added, third emphasis in original).

Between March 31, 2011, and April 2, 2011, Crewe attended the three-day training program, at the Marriott Downtown Hotel in New York City. The program was led by a trainer named Scott Stewart. Stewart held himself out as a "former financial advisor who is currently a professional, full-time trader and a market expert." Compl. ¶ 79. Stewart did not elaborate on his credentials during the program; Crewe alleges that Stewart lacks any relevant qualifications.

Crewe alleges that the three-day program did not provide him with either the training or "financial education" it had promised. Id. ¶ 1. Instead, "the sole purpose of the workshop was to up-sell 'students' into additional useless but more expensive coursework and mentoring, which can cost up to $64,899 per enrollee." Id. ¶ 2. Crewe did not sign up for the coursework and mentoring program.

C. Maurice's Experience

On February 28, 2008, Maurice attended a free training workshop sponsored by defendants in Nashville, Tennessee. Compl. ¶ 13. The workshop was led by a Mr. Huffman, who introduced himself as an "experienced real estate investor." Id. ¶ 76.*fn2 However, Huffman did not elaborate on his credentials during the program; Maurice alleges that Huffman lacks any relevant qualifications. Id. ¶ 76. Maurice further alleges that the free training workshop did not impart any useful financial strategies or tools. Instead, Huffman told attendees that they would obtain "the promised real estate investing education" during a three-day "Learn to be RichTM Training Academy." Id. ¶ 91.

Based on defendants' representations about the workshop, Maurice, on the day of the workshop, February 28, 2008, paid $495 to enroll in that training academy. Maurice executed a written contract with RDE with respect to that academy. See May Decl. Ex. 3. Unlike the agreement that Crewe entered into with respect to his three-day training program, Maurice's agreement did not contain an arbitration clause. It did, however, contain jurisdiction, venue, and choice of law clauses, as follows:

CHOICE OF LAW This Agreement shall be deemed to have been made in the State of Florida and shall be governed by the laws of this State. In any litigation arising out of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and costs.

JURISDICTION All actions brought hereunder, whether at law or in equity, shall be brought in Florida state courts or federal courts located in the state of Florida. Student consents to jurisdiction in the state of Florida and expressly waives any jurisdiction privileges which may be asserted in connection with this Agreement. VENUE Except where prohibited by law (i.e., California), venue shall be recognized only in the state or federal courts serving Lee, Palm Beach or Broward Counties in the state of Florida. Student hereby expressly waives any venue privileges that may be asserted in connection with this Agreement.

Id. at p. 3.The three-day training session that Maurice attended was held March 28, 2008, through March 30, 2008, in Nashville, Tennessee. Compl. ¶ 113; May Decl. ¶ 7. Like Crewe, Maurice alleges that it did not provide him "with a financial education as promised." Compl. ¶¶ 13, 141--42.

On March 30, 2008, the last day of the three-day training session, Maurice paid $34,097.08 to purchase a series of "advanced classes and mentor services." Id. ¶¶ 4, 13. He did so pursuant to a written contract with RDE, which he signed on March 30, 2008. May Decl. Ex.

4. That contract did not have an arbitration clause. It contained the following clause as to choice of law, jurisdiction, and venue:

CHOICE OF LAW / JURISDICTION / VENUE This Agreement shall be deemed to have been made in the State of Florida. Except where prohibited by law (i.e., California), student consents to jurisdiction in the state of Florida and expressly waives any jurisdiction and venue privileges which may be asserted in connection with this Agreement so that all actions brought hereunder whether at law or in equity, shall be brought in the state or federal courts serving Lee, Palm Beach or Broward Counties in the state of Florida. In any litigation arising out of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees and costs.

Id. at p. 3.

Maurice, joined by his fiancee, attended these advanced classes, on April 26 and 27, 2008, in Nashville, Tennessee. Compl. ¶ 141. However, these advanced training classes "did not provide . . . Maurice with a financial education as promised." Id. ¶¶ 4, 142. On April 30, 2012, Maurice paid defendants an additional $7,699 for ...


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