Hertz Corporation v. Accenture LLP

UNITED STATES DISTRICT COURT                                              
SOUTHERN DISTRICT OF NEW YORK                                             

                                :                                        
THE HERTZ CORPORATION,          :                                        
                                :                                        
              Plaintiff,        :                                        
                                :      19cv3508                          
          -against-             :                                        
                                :      MEMORANDUM & ORDER                
ACCENTURE LLP,                  :                                        
                                :                                        
               Defendant.       :                                        
                                :                                        

WILLIAM H. PAULEY III, Senior United States District Judge:               
         Plaintiff the Hertz Corporation (“Hertz”) brings this action against Defendant 
Accenture LLP (“Accenture”) for breach of contract and violations of the Florida Deceptive and 
Unfair Trade Practices Act (“FDUTPA”).  Accenture moves to dismiss Hertz’s FDUTPA claim 
pursuant to Federal Rule of Civil Procedure 12(b)(6) and also seeks to dismiss any claims by 
Hertz for consequential damages, including lost profits.  For the following reasons, Accenture’s 
motion is granted in part and denied in part.                             
                         BACKGROUND                                      

         The allegations in the Complaint are presumed true on this motion.  In 2016, 
Hertz decided to undergo a digital makeover by developing a new website and a suite of 
complementary mobile applications for its vehicle rental brands (the “Project”).  (Corrected First 
Am. Compl., ECF No. 26 (“Compl.”), ¶ 23.)  Since Hertz did not have the necessary expertise, it 
solicited proposals from technology service firms, including Accenture.  Ultimately, Hertz hired 
Accenture following a one-day marketing presentation, in which Accenture touted its world-class 
expertise in website and mobile application development.  (Compl. ¶¶ 26, 83.)  The presentation 
contained slides stating that Accenture’s staff consisted of “800 [e]xperts” who comprised “[t]he 
best talent in the world.”  (Compl. ¶ 83.)  The presentation also stated “[w]e’ve got the skills you 
need to win” and that Accenture would “put the right team on the ground [from] day one.”  
(Compl. ¶ 83.)                                                            
         The Project was to be conducted in phases, and the services and deliverables for 
each phase were, in turn, specified in letters of intent (“LOIs”) and corresponding statements of 

work (“SOWs”).  (Compl. ¶ 27.)  The LOIs and SOWs were governed by a Consulting Services 
Agreement between Hertz and Accenture that had been in place since 2004.  (Compl. ¶¶ 25, 27.)  
Between August and November 2016, Accenture completed work on Phase 1, which involved 
various planning services and the development of a “Solution Blueprint” describing the 
processes and technologies needed to complete the Project.  (Compl. ¶ 28.)  On January 30, 
2017, Accenture and Hertz entered Phase 2 of the Project pursuant to an LOI that required 
Accenture to actually design, build, test, and deploy the website and mobile applications.  
(Compl. ¶ 30.)  Accenture committed to a December 2017 “go-live” date.  (Compl. ¶ 33.) 
         Phase 2, however, was wrought with difficulties.  By September 2017, Accenture 

informed Hertz that it would not be able to meet the promised December 2017 go-live date and 
requested an extension until January 2018.  (Compl. ¶ 35.)  Accenture later requested a second 
extension until April 2018.  (Compl. ¶ 35.)  Many of Accenture’s problems in completing the 
Project were allegedly related to misrepresentations about the expertise of Accenture’s staff.  
Indeed, Hertz contends that Accenture’s developers were not the promised experts.  (Compl.       
¶ 84.)  Instead, they were inexperienced and unfamiliar with the technologies that Accenture 
recommended to Hertz for the Project.  (Compl. ¶ 84.)  This inexperience manifested itself in 
Accenture’s poor website and mobile application coding.  For example, Accenture struggled to 
develop an “integration layer” that allowed customer-facing code to communicate with Hertz’s 
back-end technological systems, such as Hertz’s reservations system and rewards program.  
(Compl. ¶ 36.)  Similarly, Accenture’s Java code “displayed poor logic” and was “difficult to 
maintain.”  (Compl. ¶ 40.)                                                
         Accenture also struggled to implement so-called “RAPID” technology, which was 
intended to streamline the development of portions of Hertz’s new website.  (Compl. ¶ 41.) 

Accenture recommended this technology to Hertz, and—in the Solution Blueprint—Accenture 
explained that its implementation required expertise.  (Compl. ¶ 89.)  Accenture represented that 
its developers had that expertise.  (Compl. ¶ 89.)  As such, Hertz followed Accenture’s 
recommendation and acquired licenses for the technology.  Ultimately, however, Accenture 
failed to implement RAPID, and it later acknowledged that it “spent a good deal of time” trying 
to “fight[] through [the] integration of RAPID” into the Project.  (Compl. ¶ 89.) 
         Hertz hired a new technology services provider for the Project in June 2018 and 
terminated Accenture.  (Compl. ¶ 63.)  After Hertz removed Accenture from the Project, Hertz 
learned that Accenture had misrepresented the extent of its code testing.  (Compl. ¶ 90.)  

According to Hertz, Accenture’s developers merely performed select tests, which tended to 
conceal Accenture’s poor work.  (Compl. ¶ 64.)  Specifically, several portions of the code were 
“commented-out,” meaning that they were marked as “explanatory comments” rather than actual 
programming code.  Commented-out code is ignored during testing.  (Compl. ¶ 90.) 
         In total, Hertz paid Accenture over $32 million in fees and expenses during the 
Project.  (Compl. ¶ 8.)  Hertz has continued to invest resources in completing the Project and 
mitigating its damages.  (Compl. ¶ 67.)                                   
                          DISCUSSION                                     
I.   Motion to Dismiss Standard                                           
          On a motion to dismiss, a court accepts all facts alleged in the complaint as true 
and construes all reasonable inferences in a plaintiff’s favor.  ECA, Local 134 IBEW Joint 
Pension Tr. of Chi. v. JP Morgan Chase Co., 

553 F.3d 187, 196

 (2d Cir. 2009).  Nevertheless, a 

complaint must “contain sufficient factual matter, accepted as true, to state a claim to relief that 
is plausible on its face.”  Ashcroft v. Iqbal, 

556 U.S. 662, 678

 (2009) (quotation marks omitted).  
To survive a motion to dismiss, the court must find the claim rests on factual allegations that 
“raise a right to relief above the speculative level.”  Bell Atl. Corp. v. Twombly, 

550 U.S. 544, 555

 (2007); see also Iqbal, 

556 U.S. at 678

 (“The plausibility standard is not akin to a probability 
requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” 
(quotation marks omitted)).  “Determining whether a complaint states a plausible claim for relief 
will . . . be a context-specific task that requires the reviewing court to draw on its judicial 
experience and common sense.”  Iqbal, 

556 U.S. at 679

.                    

II.  Hertz’s FDUTPA Claim                                                 
         FDUTPA provides that “[u]nfair methods of competition, unconscionable acts or 
practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce are    
. . . unlawful.”  

Fla. Stat. § 501.204

(1).  “A consumer claim for damages under FDUTPA has 
three elements: (1) a deceptive act or unfair practice; (2) causation; and (3) actual damages.”  
Virgilio v. Ryland Grp., Inc., 

680 F.3d 1329

, 1338 n.25 (11th Cir. 2012) (quotation marks 
omitted).  Accenture avers that Hertz has not satisfied the first element of its FDUTPA claim, 
which requires a plaintiff to “show that the alleged practice was likely to deceive a consumer 
acting reasonably in the same circumstances.”  Carriuolo v. Gen. Motors Co., 

823 F.3d 977

, 
983–84 (11th Cir. 2016) (quotation marks omitted).  “Under Florida law, an objective test is 
employed in determining whether the practice was likely to deceive a consumer acting 
reasonably.”  Carriuolo, 

823 F.3d at 984

.  “A party asserting a deceptive trade practice 
[therefore] need not show actual reliance on the representation or omission at issue.”  Davis v. 
Powertel, Inc., 

776 So. 2d 971, 973

 (Fla. Dist. Ct. App. 2000).           

      A.  Appropriate Pleading Standard                                  
         As a threshold matter, the parties disagree over the proper pleading standard 
applicable to FDUTPA claims.  Accenture contends that FDUTPA claims sounding in fraud are 
governed by the heightened standards of Federal Rule of Civil Procedure 9(b).  See, e.g., Segovia 
v. Vitamin Shoppe, Inc., 

2016 WL 8650462

, at *8 (S.D.N.Y. Feb. 5, 2016) (“[T]he Court will 
apply Rule 9(b)’s heightened pleading requirements to [the FDUTPA] claim.”).  Conversely, 
Hertz argues that Rule 9(b) is inapplicable to FDUTPA claims.  See, e.g., Eli Lilly & Co. v. Tyco 
Integrated Sec., LLC, 

2015 WL 11251732

, at *2 (S.D. Fla. Feb. 10, 2015) (endorsing approach 
that “no claims brought under FDUTPA are subject to the heightened pleading of Rule 9(b)”); 

Toback v. GNC Holdings, Inc., 

2013 WL 5206103

, at *2 (S.D. Fla. Sept. 13, 2013) (“Rule 9(b)’s 
requirements are implicated by allegations of fraud, but because FDUTPA was enacted to 
provide remedies for conduct outside the reach of traditional common law torts like fraud, the 
plaintiff need not prove the elements of fraud to sustain an action under the statute.” (quotation 
marks omitted)).                                                          
         Although there is a split among Florida courts concerning the correct pleading 
standard for FDUTPA claims, the “prevailing view”—as Accenture correctly observes—is that 
Rule 9(b) applies “where the gravamen of the claim sounds in fraud.”  Irvine v. Kate Spade & 
Co., 

2017 WL 4326538

, at *2 (S.D.N.Y. Sept. 28, 2017) (quotation marks omitted); see also 
Segovia, 

2016 WL 8650462

, at *8 (“Although courts in Florida have differed in their 
conclusions as to whether heighted pleading standards apply, the requirement of heightened 
pleading appears to turn on whether the FDUTPA claim sounds in fraud.” (citations omitted)).  
Here, Rule 9(b) applies because Hertz’s FDUTPA claim sounds in fraud.  For example, Hertz 
alleges that “Accenture misrepresented the skills and expertise of its staff” and “also 

misrepresented the extent of [its] testing of the code.”  (Compl. ¶¶ 83, 90 (emphasis added).) 
         Rule 9(b) requires that, “[i]n alleging fraud . . . a party must state with 
particularity the circumstances constituting [the] fraud . . . .”  Fed. R. Civ. P. 9(b).  The Second 
Circuit “has read Rule 9(b) to require that a complaint (1) specify the statements that the plaintiff 
contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were 
made, and (4) explain why the statements were fraudulent.”  Rombach v. Chang, 

355 F.3d 164, 170

 (2d Cir. 2004) (quotation marks omitted).  Stated differently, the rule “requires that a 
plaintiff set forth the who, what, when, where and how of the alleged fraud.”  U.S. ex rel. 
Resnick v. Weill Med. Coll. of Cornell Univ., 

2010 WL 476707

, at *4 (S.D.N.Y. Jan. 21, 2010) 

(quotation marks omitted).  With that said, “it is well established that there is no bright line rule 
for deciding whether a complaint has satisfied Rule 9(b).”  Int’l Motor Sports Grp., Inc. v. 
Gordon, 

1999 WL 619633

, at *3 (S.D.N.Y. Aug. 16, 1999) (quotation marks omitted).  
“Compliance with Rule 9(b) depends upon the nature of the case, the complexity or simplicity of 
the transaction or occurrence, the relationship of the parties and the determination of how much 
circumstantial detail is necessary to give notice to the adverse party and enable him to prepare a 
responsive pleading.”  U.S. ex rel. Kolchinsky v. Moody’s Corp., 

2017 WL 3841866

, at *3 
(S.D.N.Y. Sept. 1, 2017) (quotation marks omitted).                       
      B.  Alleged Misrepresentations                                     
         Accenture’s alleged misrepresentations fit into two categories: (1) misstatements 
contained in the 2016 marketing presentation, and (2) misstatements concerning Accenture’s 
expertise with RAPID technology and the extent of its code testing.  This Court addresses both 
categories below.                                                         

           1.  The Marketing Presentation                                
         Hertz contends that, within the 2016 marketing presentation, Accenture 
represented that its staff consisted of “800 [e]xperts” amounting to “[t]he best talent in the 
world.”  (Compl. ¶ 83.)  The presentation also stated that Accenture had “the skills you need to 
win” and claimed that Accenture would “put the right team on the ground [on] day one.”  
(Compl. ¶ 83.)  Hertz avers that these statements were misleading because Accenture’s personnel 
were not experts.  On the contrary, according to Hertz, most of Accenture’s developers were 
junior, inexperienced, and located offshore.  Accenture concedes that the alleged 
misrepresentations in the marketing presentation are “particular” enough to satisfy the Rule 9(b) 

pleading standards.  (Accenture LLP’s Mem. of Law in Supp. of its Mot. to Dismiss the Hertz 
Corporation’s Corr. First Am. Compl., ECF No. 30 (“MTD”), at 12.)  Nonetheless, Accenture 
claims that these alleged misstatements are deficient because they are non-actionable puffery.  
(MTD, at 12.)                                                             
         “Ordinarily, the question of whether a business practice . . . is deceptive, is a 
question of fact not appropriately resolved on a motion to dismiss.”  Thompson v. Procter & 
Gamble Co., 

2018 WL 5113052

, at *2 (S.D. Fla. Oct. 19, 2018); see also State Farm Mut. Auto. 
Ins. Co. v. Performance Orthopaedics & Neurosurgery, LLC, 

278 F. Supp. 3d 1307, 1316

 (S.D. 
Fla. 2017) (“Whether . . . conduct constitutes an unfair or deceptive trade practice is a question 
of fact for the jury to determine.” (quotation marks omitted)).  However, courts “have recognized 
that some representations, referred to as ‘puffery,’ are not actionable as a matter of law because 
no reasonable person could rely upon the representations as intended conveyances of fact.”  
Thompson, 

2018 WL 5113052

, at *2; see also Perret v. Wyndham Vacation Resorts, Inc., 

889 F. Supp. 2d 1333, 1342

 (S.D. Fla. 2012) (“[M]ost of the alleged misrepresentations [p]laintiffs rely 

upon are nothing more than opinion or puffery.”).  Here, the alleged misrepresentations are 
analogous to statements that courts within this circuit have routinely dismissed as non-actionable 
puffery, albeit in non-FDUTPA cases.  See, e.g., Hamilton Exhibition, LLC v. Imagine 
Exhibitions, Inc., 

2019 WL 2590639

, at *3 (S.D.N.Y. June 11, 2019) (“Defendants’ general 
statements that they are experts at producing exhibitions and can ‘take broad concepts and 
translate them into concrete realities’ are non-actionable statements of puffery and opinion about 
their expertise.”); Barilli v. Sky Solar Holdings, Ltd., 

389 F. Supp. 3d 232, 252

 (S.D.N.Y. 2019) 
(“The general positive statements about [defendant’s] professional history and management 
abilities, such as statements that he was a ‘successful businessman,’ are at most non-actionable 

puffery.”); Davis v. Avvo, Inc., 

345 F. Supp. 3d 534, 542

 (S.D.N.Y. 2018) (“[D]efendant’s . . . 
advertising of attorneys as ‘highly qualified,’ ‘the right,’ or the ‘best’ [is] nonactionable puffery” 
under the Lanham Act and New York General Business Law.); Gregory v. ProNAi Therapeutics 
Inc., 

297 F. Supp. 3d 372, 399

 (S.D.N.Y. 2018) (statements that defendant’s “technology, 
knowledge, experience, and scientific resources provide[d] [defendant] with competitive 
advantages” and that defendant was “a leader in developing and . . . deliver[ing] therapeutic 
outcomes that dramatically changed patients’ lives” were non-actionable puffery), aff’d, 

757 F. App’x 35

 (2d Cir. 2018) (summary order).                                  
         Hertz relies on two Florida cases to rebut this collection of legal authority.  First, 
Hertz offers Thompson, where the plaintiffs alleged that the packaging for Ivory Dish Detergent 
was misleading under FDUTPA because it falsely stated that the soap was “trusted,” “mild,” and 
“gentle on hands.”  

2018 WL 5113052

, at *2.  These statements were “not . . . empirically 
verifiable,” but the court nevertheless found that they could “reasonably be taken to amount to 

more than just a salesman’s lavish claims.”  Thompson, 

2018 WL 5113052

, at *2.  Second, Hertz 
cites Marty v. Anheuser-Busch Cos., where the court held that the statement that Beck’s beer 
was of “German Quality” did not constitute puffery when viewed within the larger context of 
Beck’s marketing campaign and packaging.  See 

43 F. Supp. 3d 1333, 1342

 (S.D. Fla. 2014).  
These cases are readily distinguishable because they involve consumer goods—beer and dish 
soap—purchased by ordinary shoppers.  That is, the plaintiffs in Thompson and Marty hardly 
resemble Hertz—a sophisticated, multi-billion-dollar company, which had a relationship with 
Accenture dating back to 2004.  (See Compl. ¶¶ 22, 25.)                   
         Accenture’s representation that it housed “800 [e]xperts” amounting to “[t]he best 

talent in the world,” along with its promise that it had “the skills you need to win” and would 
“put the right team on the ground [on] day one,” are quintessential examples of puffery.  
Accordingly, this Court concludes that the alleged misstatements in the marketing presentation 
are non-actionable.                                                       
           2.  Misrepresentations Concerning RAPID and Code Testing      
         Hertz also contends that Accenture misrepresented its experience with RAPID 
technology and the extent of its website and mobile application code testing.  (Compl. ¶¶ 89–90.)  
Unlike the alleged misrepresentations in the marketing presentation, Accenture avers that the 
RAPID and coding misrepresentations do not satisfy the pleading requirements of Rule 9(b).  
(MTD, at 17–19.)                                                          
         Hertz’s claim that Accenture falsely represented its RAPID expertise does not 
satisfy Rule 9(b)’s heightened pleading requirements.  Indeed, Hertz’s claim rests on a single, 
vague accusation that “Accenture [falsely] led Hertz to understand that its developers had the 

required expertise to use RAPID properly.”  (Compl. ¶ 89.)  This conclusory allegation cannot 
satisfy Rule 9(b), as the Complaint fails to explain how or when Accenture led Hertz to develop 
that understanding.  See Rombach, 

355 F.3d at 170

.  To be sure, the Complaint explains that 
Accenture recommended that Hertz utilize RAPID for the Project.  (Compl. ¶ 90.)  But, as 
Accenture notes, the mere fact that Accenture recommended RAPID to Hertz does not support 
Hertz’s assertion that Accenture misrepresented its expertise.            
         Hertz’s allegations concerning Accenture’s code testing are likewise insufficient.  
The Complaint baldly asserts that “Accenture’s developers . . . misrepresented the extent of their 
testing of the code.”  (Compl. ¶ 90.)  Yet Hertz does not specify what Accenture represented 

about its code testing in the first place.  Rather, Hertz—in reliance on State Farm Mutual 
Automobile Insurance Co.—avers that it need not provide such specifics because the “alleged 
fraudulent conduct occur[ed] over an extended period,” thereby relaxing “the specificity 
requirements of Rule 9(b).”  

278 F. Supp. 3d at 1321

.  But, even in that case, the complaint was 
accompanied by several supporting documents that “include[d] [the] alleged misrepresentations.”  
State Farm Mut. Auto. Ins. Co., 

278 F. Supp. 3d at 1321

.  Here, Hertz has offered no such 
support.  Thus, Hertz’s FDUTPA claim is dismissed with prejudice in its entirety.1  


1    Hertz participated in a pre-motion conference addressing the deficiencies in the Complaint and was 
afforded an opportunity to amend.  Thereafter, Hertz repleaded.  See DigitAlb, Sh.a v. Setplex, LLC, 

284 F. Supp. 3d 547

, 556–57 (S.D.N.Y. 2018) (“Courts have dismissed claims with prejudice on the basis that the plaintiff has 
III.   Damages                                                             
          Accenture also seeks dismissal of any claim by Hertz for consequential damages, 
including lost profits.  Accenture contends that consequential damages are straightforwardly 
precluded by both FDUTPA and provisions in the Consulting Services Agreement.  (MTD, at 
19–22.)  The argument is moot as to the FDUTPA claim, which this Court dismisses with 

prejudice.  As to the breach of contract claim, Accenture’s argument is premature because Hertz 
has not yet specified what category of damages it will seek in this action.  See, e.g., Intelligen 
Power Sys., LLC v. dVentus Techs. LLC, 

2015 WL 3490256

, at *7 (S.D.N.Y. June 2, 2015) 
(“Although [the contract] provision may prove to limit the damages that [plaintiff] can obtain in 
this lawsuit, it is premature at [the motion to dismiss] stage to determine the extent, if any, that 
this limitation on damages bars [plaintiff’s] damages claims.  Courts in this District have often 
determined, at the summary judgment stage, whether damages claims are general or 
consequential.” (citations and quotation marks omitted)).  Indeed, the Complaint simply states 
that Hertz aims to recover “the tens of millions of dollars that it paid to Accenture for the 

deficient services and deliverables, as well as the millions of dollars in additional costs . . . 
incurred in remediating and completing the Project.”  (Compl. ¶ 80.)      
                           CONCLUSION                                     
          For the foregoing reasons, Accenture’s motion to dismiss is granted in part and 
denied in part.  Hertz’s FDUTPA claim is dismissed with prejudice.  This Court, however, 
declines to determine—at least at this stage—whether the Consulting Services Agreement limits 




already had an opportunity to replead after specific warnings as to a complaint’s deficiencies.” (quotation marks 
omitted)).                                                                
the damages available to Hertz for its breach of contract claim.  The Clerk of Court is directed to 
terminate the motion pending at ECF No. 29. 
Dated: October 25, 2019 
    New York, New York               SO ORDERED: 

                                     ~   )   5  >  ay  R □□   \ ‘ 
                                          WILLIAM H. PAULEY III 
                                                 U.S.D.J. 

                                     12