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

July 13, 2011


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


Currently pending before the Court is Defendant Robert Cola's Motion for Leave to Amend his Counterclaim. For the following reasons, the Motion is granted in part and denied part.


This Court previously summarized the detailed facts underlying this litigation in an October 4, 2010 Memorandum and Order. See Brown & Brown, Inc. v. Cola, 745 F. Supp. 2d 588 (E.D. Pa. 2010). In lieu of repeating that synopsis here, the Court simply incorporates it by reference and reviews only the facts pertinent to the Motion at issue.

A. Facts Relevant to Defendant Cola's Counterclaim

In January 2004, Cola, who was then an employee of Doyle Consulting Group, Inc. ("Doyle Consulting"), was offered employment with Brown & Brown of Pennsylvania, Inc. ("Brown-PA"), a subsidiary of Brown & Brown, Inc. ("Brown & Brown"), and was presented with an employment agreement ("Employment Agreement"), which he signed. (Def. Cola's Mot. Dismiss, Ex. A, Proposed Am. Countercl. ("Cola Proposed Am. Countercl.") ¶ 1.) Cola's employment with Brown-PA took effect on February 2, 2004. (Id. ¶ 3.) In 2006, Cola became a Profit Center Leader for Brown-PA and was responsible for overseeing Brown-PA's producers and for making and keeping Brown-PA profitable. (Id. ¶¶ 4-5.) Through 2009, he worked diligently to maintain, grow, and service both his prior clients from Doyle Consulting and his new accounts, all for the benefit of Brown-PA. (Id. ¶ 4.) In 2006, Cola was also in charge of overseeing the transition from Brown-PA's use of the name "Doyle Consulting" to the exclusive use of the name "Brown & Brown, Inc." or "Brown & Brown of Pennsylvania." (Id. ¶ 6.) By 2008, Plaintiffs no longer used the name "Doyle Consulting" or any derivatives thereof. (Id. ¶ 7.)

In early 2007, Cola began experiencing difficulties with his supervisor, Thomas Riley, who was the Regional President & Chief Acquisition Officer of Brown & Brown. (Id. ¶ 8.) Specifically, Riley engaged in embarrassing and unprofessional conduct towards Cola and his co-workers. (Id. ¶ 9.) In addition, Brown-PA's controller, Dean Saperstein, regularly engaged in embarrassing and unprofessional conduct, which undermined Cola's ability to perform his job. (Id. ¶ 10.) Through 2008 and 2009, Cola began to question his ability to continue effectively servicing Brown-PA's clients, and developed some concern for the future of Brown & Brown due to disclosures made by Riley in breach of his obligations. (Id. ¶ 11.)

On December 1, 2009, Cola learned from Saperstein that Brown & Brown had unliterally decided to separate the financial reporting of Brown-PA's wholesale operations from its retail (or consulting) operations. (Id. ¶ 12.) This split allegedly threatened to undermine the retail group's success and financial viability. (Id. ¶¶ 13-14.) It also threatened to significantly decrease Cola's bonus entitlement and total compensation, in purported violation of his Brown-PA Employment Agreement, Term 5 of which required a mutual agreement by Cola and Brown-PA before his compensation and bonus could be changed. (Id.)

On June 11, 2010, Cola resigned from Brown-PA and formed the independent company RGC Consulting, Inc. (Id. ¶¶ 15-16.) After Cola's resignation, Plaintiffs attempted to interfere with his livelihood by threatening and taking legal action to enforce Cola's non-compete clause, which he believes to be unenforceable, not supported by consideration, and contrary to Pennsylvania law and public policy. (Id. ¶ 17.)

B. The Present Lawsuit

On August 4, 2010, Plaintiffs Brown & Brown, Brown-PA, and Grinspec, Inc. (collectively "Plaintiffs") commenced the present lawsuit against Cola, former Grinspec employee Ryan Tola, and their new employer Defendant Doyle Alliance Group ("Doyle Alliance"), setting forth fifteen Counts. Count I claimed unfair competition under the Lanham Act, 15 U.S.C. § 1125, due to Defendants' use of the name "Doyle Alliance Group" and the internet domain "" (Compl. ¶¶ 109-18.) Count II asserted trademark infringement under the Lanham Act resulting from Defendants' use of the internet domain name "doylealliance" (Id. ¶¶ 119-24.) Count III set forth a state law claim of unfair competition, again caused by Defendants' use of the name "Doyle Alliance Group." (Id. ¶¶ 125-33.) Count IV claimed breach of contract against solely Cola and Tola, due to their alleged violation of their respective Employment Agreements. (Id. ¶¶ 134-40.) Count V averred a breach of fiduciary duty and/or duty of loyalty against Defendants Cola and Tola. (Id. ¶¶ 141-46.) Count VI asserted tortious interference with existing contractual relations against Doyle Alliance only for interfering with Cola and Tola's Employment Agreements. (Id. ¶¶ 148-56.)

Count VII set forth another tortious interference claim against all Defendants for interference with Plaintiffs' contractual and business relationships with customers. (Id. ¶¶ 157-63.) Count VIII contended that all Defendants tortiously interfered with Brown & Brown's contractual relations with its employees. (Id. ¶¶ 164-71.) Counts IX, X, and XI alleged, against all Defendants, misappropriation of business, misappropriation of confidential and proprietary information, and misappropriation of property, respectively. (Id. ¶¶ 172-90.) Finally, Counts XII, XIII, XIV, and XV respectively asserted unfair competition, civil conspiracy, conversion, and unjust enrichment against all Defendants. (Id. ¶¶ 188-211.)

On September 7, 2010, Defendant Ryan Tola filed a Motion to Dismiss the Complaint in its entirety under Federal Rule of Civil Procedure 12(b)(2). On the same date, all Defendants joined in a Motion to Dismiss Plaintiffs' Complaint under Rule 12(b)(6) for failure to state a claim upon which relief may be granted. By way of Memorandum and Order dated October 4, 2010, the Court granted Defendants' Motion for dismissal of the fiduciary duty/duty of loyalty claim, the tortious interference claims as to Defendants Tola and Cola, the conversion claim as to Tola and Cola only to the extent the claim alleged conversion of customers and business, and misappropriation of business/customers claim as to Tola and Cola. The Motion was denied in all other respects.

All Defendants filed Answers on October 22, 2010, and Defendants Tola and Cola both filed Counterclaims. Defendant Cola's Counterclaim alleged: (1) declaratory judgment that the restrictive covenant in his employment agreement with Brown-PA is unenforceable (Cola Countercl. ¶¶ 1-10), and (2) unfair competition. (Id. ¶¶ 11-20.) In December 2010, this Court denied Plaintiffs' Motion to Dismiss Counterclaims.

In connection with its original Complaint, Plaintiffs sought a preliminary injunction to preclude Defendants from engaging in any additional competition that violated their restrictive covenants. The parties proceeded to a preliminary injunction hearing on March 29, 2011. Following two days of testimony and supplemental briefing by the parties, the Court issued Findings of Fact and Conclusions of Law denying that injunction. Brown & Brown v. Cola, No. CIV.A.10-3898, 2011 WL 2415143 (E.D. Pa. June 16, 2011).

C. The Current Motion

As a result of both the ongoing discovery, together with some of the testimony presented at the preliminary injunction hearing, Defendant Cola allegedly discovered additional evidence to support additions/amendments to his Counterclaims. On March 21, 2011, Cola informed Plaintiffs of his intent to amend and sought Plaintiffs' consent to such an amendment. On April 15, 2011, Plaintiffs informed Cola of their refusal to give such consent. Accordingly, on May 11, 2011, Defendant Cola filed the present Motion for Leave to Amend his Counterclaim to include two new items. First, he seeks to add a counterclaim for breach of contract against Plaintiffs Brown & Brown and Brown-PA for their material breach of Cola's Employment Agreement by unilaterally changing the formula by which Cola's bonus compensation was to be computed. Second, he requests leave to amend his existing Counterclaim for unfair competition against all Plaintiffs to ...

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