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Brown & Brown, Inc., Brown & Brown of Pennsylvania, Inc. and v. Robert Cola

December 22, 2010

BROWN & BROWN, INC., BROWN & BROWN OF PENNSYLVANIA, INC. AND GRINSPEC, INC. PLAINTIFFS,
v.
ROBERT COLA, RYAN TOLA, AND DOYLE ALLIANCE GROUP, DEFENDANTS.



The opinion of the court was delivered by: Buckwalter, S.J.

MEMORANDUM

Currently pending before the Court are Plaintiffs' Motion to Dismiss the Counterclaims of Defendants Ryan Tola and Robert Cola pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the Motion is denied.

I. FACTUAL AND PROCEDURAL HISTORY

This Court previously summarized the detailed facts underlying this litigation in an October 4, 2010 Memorandum and Order. See Brown & Brown, Inc. v. Co., F. Supp. 2d , 2010 WL 3928589 (E.D. Pa. Oct. 4, 2010). In lieu of repeating that synopsis here, the Court simply incorporates it by reference and reviews only the facts pertinent to the Counterclaims at issue.

A. Facts Relevant to Defendant Tola's Counterclaim

According to Defendant Ryan Tola's Counterclaim, Tola accepted employment, in February 2004, with Plaintiff Brown-Pennsylvania, Inc. ("Brown-Pa."). (Tola Countercl. ¶ 237.) Between February 2004 and early 2007, Tola worked diligently with Brown-Pa. to maintain, grow, and service the clients he had worked with at his previous employer, Doyle Consulting Group, Inc., and to establish, maintain, grow, and service new business and clients, all for the benefit of Brown-Pa. (Id. ¶ 238.) By early 2007, Tola was working as a producing broker on a commission basis, receiving a 40% commission for the first year of all new business and 20% for all years thereafter. (Id. ¶ 239.) He had established a stable and lucrative group of accounts. (Id. ¶ 240.)

Around that time, Thomas Riley, Regional President and Chief Acquisition Officer of Brown-Pa.'s parent company Plaintiff Brown & Brown, Inc. ("Brown & Brown"), advised Tola that Brown & Brown was in the process of acquiring Plaintiff Grinspec, Inc. ("Grinspec"), a family-owned New Jersey brokerage firm. (Id. ¶ 241.) Although Brown & Brown was taking on Grinspec's assets, it was not acquiring the principals and key managers of Grinspec. (Id. ¶ 242.) As such, Riley asked Tola to give up his lucrative book of business with Brown-Pa. to manage Grinspec. (Id. ¶ 244.) In connection with this request, Riley, Tola, and Robert Cola of Brown-Pa. discussed Tola's transition to Grinspec, the terms of which were memorialized in a February 23, 2007 e-mail sent from Cola to both Tola and Riley. (Id. ¶ 245.) The e-mail stated as follows:

To recap the meeting that we had here on Wednesday regarding Ryan's transition to Grinspec, here is what we discussed:

* Ryan's book of business will remain here, will be serviced here, and Ryan will remain involved in key accounts by maintaining key relationships.

* We will compensate his office for his involvement in those accounts

* Ryan's Comp:

G Ryan's base will be between $250,000 and $275,000 G $70,000 will be added to his compensation, which will be paid by the compensation we pay to his office for his involvement.

Bonus), effective this year.

G PSP: Approximately $100,000 G Moving Allowance: $25,000 (Id. Ex. A.) In reliance on such promises, Tola accepted the employment and began work as G Bonus Full 8% of Net operating income (66.7% of overall available PCL Grinspec's manager in April of 2007. (Id. ¶ 246.)

After Tola had been employed by Grinspec for many months, Brown & Brown management and Grinspec asked Tola to execute an employment agreement dated "as of April 2, 2007." (Id. ¶ 251.) According to Tola, his agreement was not supported by any consideration and was contrary to New Jersey public policy. (Id. ¶¶ 252, 257.) As part of the employment agreement, Grinspec sought to restrain Tola from engaging in competitive activities for public sector accounts following the conclusion of his employment with Grinspec. (Id. ¶ 254.)

In September of 2007, Riley advised Tola that he would not be paid in accordance with the February 23, 2007 e-mail. (Id. ¶ 247.) Since that time, and despite Tola's demands, Grinspec, at Riley's direction, has refused to pay Tola sums owed in amount of at least $190,000. (Id. ¶ 248.) In addition, Riley repeatedly engaged in unprofessional conduct towards Tola, undermined Tola's credibility, and interfered with the effective operation of Grinspec. (Id. ¶¶ 249-50.) Accordingly, on June 15, 2010, Tola left his employment with Grinspec. Shortly thereafter, ...


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