ORDER GRANTING DEFENDANT'S MOTION FOR FINAL SUMMARY JUDGMENT

KATHLEEN M. WILLIAMS, District Judge.

This MATTER is before the Court on Defendants' Motion for Final Summary Judgment [D.E. 167], Plaintiffs' Response [D.E. 192], Defendant's Reply [D.E. 228], and Plaintiff's Corrected Sur-Reply [D.E. 239].

I. BACKGROUND

The Internal Revenue Code ("IRC") offers employers a number of retirement plan options. At issue in this case is a plan established under § 412(i) of the Code.1 Typically used by small businesses, a plan established under § 412(i) provides "defined benefits" to employees upon retirement. To establish such a plan, the employer drafts a plan document and creates a trust to receive and manage the money deposited by the employer to the fund the plan. A plan established under § 412(i) is unique in that it is funded exclusively by life insurance and annuity contracts, or a combination thereof. The employer pays tax deductible premiums on those contracts, and in turn the insurer guarantees the benefits promised under the plan. Due to this arrangement, § 412(i) plans are exempt from several requirements imposed on other defined benefit plans, such as a minimum funding requirement. In addition to favorable tax deductions for the employer, § 412(i) plans minimize investment related risks and administrative expenses. [D.E. 168, Tab 8, Exh. 4, at 7-9].

To qualify under § 412(i), a plan must satisfy the following six statutory criteria:

26 U.S.C. § 412(i). For present purposes, the most important criterion is § 412(i)(3)'s requirement that the "benefits provided by the plan [be] equal to the benefits provided under each [life insurance] contract at normal retirement age. . . ." In order to ensure this equality, the plan administrator uses a formula to calculate the benefits that will be provided to an employee at retirement. That calculation then determines the amount of life insurance necessary to fund the plan. The ensuing equality between the plan benefits and the life insurance contracts ensures that the plan will be fully funded and that its benefits will be paid as promised. [D.E. 168, Tab 8, Exh. 4, at 4, 7, 10].

The Plaintiffs in this case are Larry Zarrella and Zarrella Construction Inc. (collectively "Zarrella"). Larry Zarrella is the sole owner of Zarrella Construction, a premier interior contractor in South Florida. [D.E. 166 ¶ 1; D.E. 193 ¶ 1; D.E. 168, Tab 1, Exh. 1]. In March 2003, Zarrella Construction purchased nine Flex XII life insurance policies from Defendant Pacific Life Insurance Company ("Pacific Life") for use in a § 412(i) plan. Larry Zarrella served as the trustee and administrator of the plan. Subsequently, in 2005, the IRS began a nationwide audit campaign targeting abusive § 412(i) plans. The IRS audited Zarrella's plan and concluded, among other things, that it failed to satisfy § 412(i)(3), because the value of the life insurance policies exceeded the benefits to be provided under the plan. [D.E. 197, Tab 1, Exh. A; id., Tab 5, Exh. A, at unnumbered 2-3]. Zarrella suffered damages as a result of the audit. [See D.E. 197, Tab 1, Exh. 1].

Zarrella brought this lawsuit in May 2010. [D.E. 1]. Although Zarrella has consistently characterized this lawsuit as a class action [see D.E. 1, 34, 69], he represented at the Status Conference before this Court on September 28, 2011 that class certification has not been—and will not be—sought. [See D.E. 240]. Thus, the only Plaintiffs in this case are Larry Zarrella and Zarrella Construction. Zarrella has also brought a number of fraud and negligence claims throughout the life of this lawsuit. However, before this case was transferred to the undersigned [D.E. 227], United States District Judge James Cohn—in a series of three orders—ultimately granted Pacific Life's motions to dismiss these claims, as well as a claim under the Employee Retirement Income Security Act. Only two claims survived Pacific Life's motions to dismiss: 1) Zarrella's claim for breach of contract; and 2) Zarrella's claim that Pacific Life violated California's Unfair Competition Law ("UCL"), Cal. Bus. & Prof.Code § 17200 et seq., based on a predicate violation of California's False Advertising Law ("FAL"), § 17500. [See D.E. 27, 65, 185]. Pacific Life now moves for summary judgment on these two claims.

II. DISCUSSION

Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Under this standard, "[o]nly disputes over facts that might affect the outcome of the suit under the governing [substantive] law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). And any such dispute is "genuine" only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

In evaluating a motion for summary judgment, the Court considers the evidence in the record, "including depositions, documents, electronically stored information, affidavits or declarations, stipulations. . ., admissions, interrogatory answers, or others materials. . . ." Fed.R.Civ.P. 56(c)(1)(A). The Court "must view all the evidence and all factual inferences reasonably drawn from the evidence in the light most favorable to the nonmoving party, and must resolve all reasonable doubts about the facts in favor of the non-movant." Rioux v. City of Atlanta, 520 F.3d 1269, 1274 (11th Cir.2008) (quotation marks and citations omitted). At the summary judgment stage, the Court's task is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249, 106 S.Ct. 2505.

A. BREACH OF CONTRACT CLAIM

Under Florida law, "[t]he elements of a breach of contract action are (1) a valid contract; (2) a material breach; and (3) damages."2 Beck v. Lazard Freres & Co., LLC, 175 F.3d 913, 914 (11th Cir. 1999). The Parties in this case do not dispute the existence of a valid contract (the Flex XII Policy) or damages (though they do dispute their amount). Rather, they dispute whether there was a material breach of a contractual obligation.

Zarrella argues that Pacific Life breached its contractual obligation to provide life insurance policies suitable for use in a § 412(i) plan. Zarrella asserts that Pacific Life undertook this obligation in a § 412(i) Rider attached to the Flex XII Policy. He relies primarily on the introductory preamble to the Rider, which provides:

[D.E. 197, Tab 3; D.E. 192, at 6-7]. Zarrella contends that this provision amounts to an enforceable contractual obligation by Pacific Life to supply a policy "in accordance" with § 412(i). The Court disagrees. While not entirely clear, the Court reads the "in accordance" language of this provision to modify the Plan, not the Policy. In any event, even if the "in accordance" language modifies the Policy, Pacific Life correctly points out that this provision is merely a prefatory description of what the Rider is, namely an agreement between Pacific Life and the trustee of the § 412(i) plan. [D.E. 228, at 5]. It does not contractually obligate Pacific Life to undertake or perform any action. Cf. Whetstone Candy Co., Inc. v. Kraft Foods, Inc., 351 F.3d 1067, 1074 (11th Cir.2003) (stating that "`whereas' clauses are not binding," but rather constitute "merely prefatory recitations of the facts that lead the parties to enter the agreement") (citing Johnson v. Johnson, 725 So.2d 1209, 1212-13 (Fla.Dist.Ct.App.1999)).

Zarrella also relies on a paragraph in the Rider entitled, "Tax Status," which provides in pertinent part:

[D.E. 197, Tab 3 ¶ 5; D.E. 192 at 7 n.9]. Another court has recently considered this provision of the Rider and concluded that it does not constitute an enforceable contractual obligation. Drilling Consultants, Inc. v. First Montauk Sec. Corp., 806 F.Supp.2d 1228, 1239, 2011 WL 3792408, at *8 (M.D.Fla. May 27, 2011) (concluding that this provision "show[s] merely that Pacific Life `intended' to provide a policy that satisfied the applicable tax requirement. The language of the rider appears precatory and indicative of no duty on the part of Pacific Life. . . . Accordingly, the plaintiffs fail to state a claim for breach of contract.").

Nonetheless, even assuming arguendo that Pacific Life did undertake a contractual obligation to provide life insurance policies suitable for use in a § 412(i) plan, Zarrella's breach of contract claim still fails. Zarrella argues that Pacific Life breached that obligation because the Internal Revenue Service ("IRS") concluded that Zarrella's plan violated the requirement in § 412(i)(3) that the benefits provided by the plan equal the benefits provided by the life insurance contracts. However, the record establishes that this violation was not caused by any incompatibility between the Flex XII Policy and § 412(i). Indeed, it is undisputed that, in accordance with § 412(i), the Flex XII Policy "provide[d] for level annual premium payments," Pacific Life "guaranteed" the "benefits provided by the plan," and Pacific Life was "licensed under the law of a State to do business." 26 U.S.C. § 412(i)(2)-(3); [D.E. 168, Tab 8, at 176-77; id., Exh. 4, at 15-16]. Rather, Zarrella's plan violated § 412(i)(3)'s equality requirement because Zarrella purchased too much insurance and overfunded the plan. In other words, the violation was not due to any problem with the Policy itself, but rather to the amount of insurance purchased.

Significantly, the experts for both Parties agreed on this point. [D.E. 168, Tab 8, at 97, 101, 124-26, 195; id., Exh. 4, at 3, 21; D.E. 168, Tab 9, at 118-20, 147-48, 201-02], Indeed, Zarrella's own expert testified as follows:

[D.E. 168, Tab 9, at 118-20, 147-48, 201-02]. Given the experts' agreement on this point, and the absence of any evidence to the contrary, this Court concludes there is no genuine issue of material fact as to whether the Policy was suitable for use in a § 412(i) plan.

Zarrella's remaining contentions are without merit. Zarrella attempts to show that Pacific Life played a role in designing Zarrella's plan. [D.E. 192 at 9-11]. However, Zarrella does not explain how that alleged role has any bearing on the Flex XII Policy's suitability for use in a properly designed § 412(i) plan. Indeed, Zarrella does not even assert that, in designing the plan, Pacific Life determined the amount of insurance that Zarrella purchased and was therefore responsible for the § 412(i)(3) violation.3

Zarrella also argues that Pacific Life never actually intended for its Flex XII Policy to be used in a § 412(i) plan, and it therefore breached a contractual obligation (expressed in the Rider) to provide a policy "intended to qualify as part" of a § 412(i) plan. [D.E. 197, Tab 3 ¶ 5; D.E. 192, at 11-13]. However, as Pacific Life points out, it is well-established that subjective intent is irrelevant in a breach of contract action. See United States v. Blankenship, 382 F.3d 1110, 1134 (11th Cir.2004) ("The enforceability of a contract depends on its objective representations rather than parties' subjective intentions."); Gendzier v. Bielecki, 97 So.2d 604, 608 (Fla.1957) ("The writing itself is the evidence of what they meant or intended by signing it."). Thus, Pacific Life's subjective intentions have no bearing on whether it materially breached a contractual obligation expressed in the Policy. In this respect, Zarrella's argument appears to be an attempt to circumvent this Court's previous dismissal of his fraud claims, as two of Zarrella's fraud claims—which have previously been dismissed—relied on this very language in the Rider. [See D.E. 69 ¶¶ 44-57].

Finally, Zarrella points out that the IRS concluded that the plan "engaged in a Listed Transaction as defined in Revenue Ruling 2004-20." [D.E. 197, Tab. 1, Exh. A; D.E. 192, at 8]. However, Revenue Ruling 2004-20 simply declared as "listed transactions" those transactions where "the employer has deducted amounts used to pay premiums on a life insurance contract for a participant with a death benefit under the contract that exceeds the participant's death benefit under the plan by more than $100,000." Rev. Rul.2004-20, at 8, available at http://www.irs.gov/pub/irs-utl/rr-04-20.pdf. A "listed transaction" is subject to mandatory disclosure to the IRS, but it has no effect on a plan's qualification under § 412(i). Thus, the IRS' conclusion that Zarrella's plan engaged in a listed transaction did not disqualify the plan under § 412(i), much less cast doubt on the Flex XII Policy's suitability for use in a § 412(i) plan. For these reasons, Pacific Life is entitled to summary judgment on Zarrella's breach of contract claim.

B. CALIFORNIA FALSE ADVERTISING LAW CLAIM

California's Unfair Competition Law ("UCL") prohibits any "unlawful, unfair or fraudulent business act or practice." Berryman v. Merit Prop. Mgmt., Inc., 152 Cal.App.4th 1544, 1554, 62 Cal.Rptr.3d 177, 185 (Cal.Ct.App.2007); see Cal. Bus. & Prof.Code § 17200. Zarrella brings his UCL claim under the "unlawful" prong, which requires a predicate violation of another law. Id.; [D.E. 69 ¶¶ 72-73]. In this case, Zarrella bases his remaining UCL claim on a predicate violation of California's False Advertising Law ("FAL"). Cal. Bus. & Prof.Code § 17500; [D.E. 69 ¶ 74].

Under California's FAL, "it is unlawful to make and disseminate any statement that is `untrue or misleading, and which is known, or by the exercise of reasonable care should be known, to be untrue or misleading.'" Fraker v. Bayer Corp., 2009 WL 5865687, at *6 (E.D.Cal. Oct. 6, 2009) (quoting § 17500). "A private plaintiff bears the burden of producing evidence and the burden of proof to "show that members of the public are likely to be deceived. A `reasonable consumer' standard applies." Colgan v. Leatherman Tool Group, Inc., 135 Cal.App.4th 663, 682, 38 Cal.Rptr.3d 36, 48 (Cal.Ct. App.2006); see also McCann v. Lucky Money, Inc., 129 Cal.App.4th 1382, 1388, 29 Cal.Rptr.3d 437, 441 (Cal.Ct.App.2005). However, "a private individual has standing to bring a UCL action only if he or she `has suffered injury in fact and has lost money or property as a result of the unfair competition.'" Troyk v. Farmers Group, Inc., 171 Cal.App.4th 1305, 1339, 90 Cal.Rptr.3d 589, 617 (Cal.Ct.App.2009) (quoting § 17204).

In this case, Zarrella does not clearly identify the statements or advertisements by Pacific Life that he claims were false or misleading and that caused him actual injury. [See D.E. 192 at 13-20; D.E. 239]. Nonetheless, it appears that the gravamen of his FAL claim is that the Flex XII Policy itself was misleading because it falsely promised compliance with § 412(i).4 [See D.E. 192 at 17, 20; D.E. 239 at 5 n.8]. However, it is not clear whether Zarrella is attempting to assert that the Policy falsely promised that the Policy itself complied with § 412(i) or that the plan would comply with § 412(i).5

To the extent Zarrella is making the former assertion, the Court's analysis above on Zarrella's breach of contract claim explains that any such promise was not false or misleading. Again, this is so because Zarrella has not identified any genuine issue of material fact calling into doubt the Policy's suitability for use in a § 412(i) plan.

To the extent Zarrella is asserting that the Policy falsely promised that the plan would comply with § 412(i), Zarrella has not identified any such promise. To the contrary, the Policy contains numerous disclosures emphasizing Zarrella's responsibility to ensure that its plan complied with § 412(i), disclaiming any such responsibility for Pacific Life, and highlighting the risks associated with § 412(i) plans. A few examples are re-printed below:

[D.E. 168, Tab 1, Exh. 2].

Moreover, the only § 412(i) non-compliance to allegedly injure Zarrella was the plan's failure to comply with § 412(i)(3)'s equality requirement. In this respect, the very Rider upon which Zarrella relies in this case makes it clear that Zarrella, as the owner and administrator of the Policy, was responsible for ensuring compliance with § 412(i)(3). The first paragraph of the Rider informs Zarrella that "[t]he policy is designed to fund the benefits you report to us [Pacific Life]." [D.E. 197, Tab 3 ¶ 1]. The second paragraph instructs Zarrella that it "need[s] to tell [Pacific Life] about any possible over-funding;" and, that in the absence of such notice, Pacific Life will "assume that each Insured's accrued Benefits as of any date prior to the Retirement Date that are being funded with the Policies . . . are not less than the [value] of such Policies. . . ." [Id. ¶ 2]. The third paragraph then goes on to provide that, if Zarrella "notif[ies] [Pacific Life] of over-funding, [Pacific Life] will make adjustments." [Id. ¶ 3]. Thus, Pacific Life specifically informed Zarrella that it was the latter's responsibility to ensure compliance with § 412(i)(3) and inform Pacific Life of any possible overfunding.6 This makes sense because, as the owner and administrator of the plan, Zarrella was responsible for determining the benefits to be provided under the plan and obtaining the corresponding amount of insurance necessary to fund (but not overfund) the plan. [Id., Tab 8, Exh. 4, at 17-18].

Zarrella's remaining assertions do not establish any genuine issue of fact material to an FAL Claim. For example, Zarrella argues that Pacific Life failed to disclose IRS concerns about § 412(i) plans. [D.E. 192 at 13-14, 17]. Zarrella particularly refers only to warnings issued at industry conferences by IRS regulator James Holland. [Id. at 14]. But Zarrella asserts that Holland merely "warned that investors and promoters be wary of schemes which promoted huge tax savings under the guise of selling insurance policies for use in 412(i) plans. . . ." [Id.]. Zarrella does not identify any specific warnings issued by the IRS, assert that Pacific Life failed to disclose such warnings, or explain how Zarrella was injured as a result. More importantly, the Policy fully disclosed that it was Zarrella's responsibility to consult independent tax and legal advisors. And both the Policy and the Rider expressly warned Zarrella about § 412(i)(3)'s equality requirement and the risk of overfunding. In this respect, it is worth reiterating that the only § 412(i) non-compliance to allegedly injure Zarrella was the plan's violation of § 412(i)(3)'s equality requirement—a requirement that, again, was fully disclosed by Pacific Life and allocated to Zarrella's sphere of responsibility.

Zarrella similarly argues that Pacific Life ignored the warnings of its former President Glenn Schafer. [D.E. 192, at 13, 16]. To the extent Zarrella is attempting to argue that ignoring Schafer's warnings rendered the Policy false or misleading, that argument fails. Schafer testified only that he had expressed concerns about whether, if an employee decided to purchase the life insurance policy from the trust, the cash surrender value would equal the fair market value; if not, it could result in adverse tax consequences to the employee. [D.E. 224, Tab 11, at 17-20. 32-33]. Such concerns have no relevance to this case because the Zarrella employees never purchased life insurance policies from the trust. [D.E. 228, at 14]. Moreover, Schafer did not express concerns that the Flex XII Policy was not suitable for use in a § 412(i) plan; to the contrary, he testified that the Policy "was a perfectly fine product to be in [a] section . . . 412(i) [plan]. . . ." [Id. at 19].

Zarrella also relies heavily on Pacific Life's purported withdrawal of the Flex XII Policy shortly after Zarrella purchased it. [D.E. 192 at 15, 17; D.E. 239 at 5]. Again, to the extent Zarrella argues that this rendered the Policy false or misleading, that argument fails. The record reflects that Pacific Life did not "withdraw" the Flex XII Policy, but rather cautiously instituted an internal policy providing that it would no longer accept applications where the § 412(i) plan would be funded by more than 60% life insurance contracts. [D.E. 197, Tab 14, Exhs. 1, 50]. Pacific Life's shift in policy does not retroactively render the Flex XII Policy false or misleading. Indeed, the Flex XII Policy sold to Zarrella specifically disclosed that "certain risks [including overfunding] may increase for 412(i) plans where the percentage of contribution allocate to life insurance exceeds fifty percent of the total annual plan contribution." [D.E. 168, Tab 1, Exh. 2, Policy Illustrations, at 7-8].7

Zarrella makes a number of additional assertions that are untethered to any specific statement or advertisement made by Pacific Life. For example, Zarrella reiterates his assertion that Pacific Life was the chief "architect" of the plan [D.E. 192, at 19-20]; but, as noted above, he has failed to produce sufficient evidence establishing that fact. Zarrella asserts that Craig Richman, Zarrella's financial consultant, relied on the Graduate Group's representations that the plan met IRS guidelines [D.E. 192, at 18]; but Zarrella does not identify any statement made by Pacific Life, and the Graduate Group is not a Defendant. And Zarrella asserts that Pacific Life "advised its producers on the supposed tax advantages of plans that would incorporate its policies" [id. at 19]; but Zarrella does not explain how such a statement, which was not made to Zarrella, was false or misleading. In short, Zarrella does not sufficiently explain how these assertions make out an FAL claim against Pacific Life; he does not identify specific statements or advertisements made by Pacific Life, explain how they were false or misleading, and describe the injury that resulted. Accordingly, Pacific Life is entitled to summary judgment on this claim.

III. CONCLUSION

For the foregoing reasons, the Court hereby GRANTS Pacific Life's motion for final summary judgment. All pending motions are DENIED AS MOOT. The Clerk is directed to CLOSE this case.