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Nationwide Insurance Independent Contractors v. Nationwide Mutual Insurance Company

April 30, 2012

NATIONWIDE INSURANCE INDEPENDENT CONTRACTORS ASSOCIATION, INC., ET AL.
v.
NATIONWIDE MUTUAL INSURANCE COMPANY



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

MEMORANDUM

On October 4, 2011, the Court dismissed a complaint brought by the Nationwide Insurance Independent Contractors Association, Inc. ("NIICA") against Nationwide Mutual Insurance Company for lack of associational standing. NIICA and NIICA member David A. Gardner filed an Amended Complaint on November 7, 2011, alleging many of the same underlying facts. The defendant filed a motion to dismiss the amended complaint. The Court will grant the defendant's motion.

I. Facts as Alleged in the Amended Complaint

NIICA is a non-profit voluntary-membership organization of agents affiliated with the defendant. It is "operated for the purpose of protecting the professional interests of its members and improving their working conditions." Am. Compl. ¶ 10. The association's purpose is to act on behalf of its members as "a watch dog insuring that the corporate does not take advantage of its sales force." Id. ¶ 11. The NIICA Board of Directors determined that this suit would not harm any of its members and NIICA did not receive any objection to this lawsuit from its Pennsylvania members. Id. ¶ 16.

Gardner is an agent in an independent contractor relationship with Nationwide. In 1991, he signed an Agent's Agreement with Nationwide, known as the 1987 Agreement. Id. ¶ 2, Ex. B. All NIICA members operate under similar agent agreements. Id. ¶ 12.

Prior to 2004, Nationwide agents either automatically accumulated deferred compensation incentive credits ("DCIC") based on their annual earnings or enrolled in an alternate compensation program which lacked deferred income credits but gave higher levels of current compensation and benefits. Id. ¶¶ 37, 39. In 2004, Nationwide introduced a new agent agreement that eliminated deferred income credits for new employees. Id. ¶ 39. In 2006, Nationwide introduced the "On Your Side Promise" which gave Nationwide increased supervisory powers over those agents who agreed to participate in the program. Id. ¶ 41. In 2009, Nationwide replaced all earlier non-DCIC programs with the "2010 Agent Choice Addendum." Agents who sign the 2010 Addendum waive their right to accrue additional DCIC, although they retain DCIC already accrued. Id. ¶¶ 45-46. Gardner did not sign the On Your Side Promise or the 2010 Addendum. Id. ¶ 47.

Gardner's agent agreement contains a provision stating that the agent will not solicit or write policies of insurance in companies other than Nationwide without Nationwide's consent. With Nationwide's consent, individual agents can broker business through, for example, Insurance Intermediaries, Inc. ("III"), a Nationwide-owned brokerage company for non-Nationwide insurers. Id. ¶¶ 27-29.

The 2010 Agent Addendum also includes a provision that gives Nationwide exclusive and permanent ownership and control over all policyholder information developed by the agent and transmitted to Nationwide. Id. ¶ 66. In addition, Nationwide issued a 2009 Nationwide Agency Administration Handbook, which says that failure to turn over confidential information, including policyholder information, upon termination of a contract with Nationwide, constitutes grounds for forfeiture of agent's post-termination payments. Id. ¶¶ 30, 33, 81. Nationwide has also asserted "in litigations and elsewhere" that policyholder information is its trade secret. Id. ¶ 51.

II. The Plaintiffs' Claims

The plaintiffs allege that the 2010 Addendum and the 2006 On Your Side Promise constitute discrimination against those employees with pre-2004 agent agreements who choose not to relinquish their DCIC benefits. Id. ¶¶ 52-59.

The plaintiffs also allege that Nationwide is "arbitrarily denying access to the III network to Mr. Gardner and other agents like him" who have opted to retain their DCIC benefits and not enroll in the new compensation system. Id. ¶ 48. The plaintiffs also claim that Nationwide is withholding bonus compensation from Gardner and other agents in order to pressure them to sign the On Your Side Promise agreement. Id. ¶¶ 60, 61. The plaintiffs claim that Nationwide has breached the agency agreements or the implied covenant of good faith and fair dealing by discriminating against Gardner and similarly-situated agents who do not relinquish DCIC benefits and pressuring those agents to relinquish those benefits. Id. Count I, II.

In addition, the plaintiffs seek a declaration that Nationwide's attempt to control policyholder information breaches Gardner's agency agreement and the agent agreements of those agents who have not signed the 2010 Agent Choice Addendum. Id. ¶¶ 69-74, Counts III-V.

III. Analysis

The defendant filed this motion to dismiss arguing that NIICA and Gardner lack standing to pursue their claims and that Gardner fails to state a claim.

A. Standing

An association has the right to bring a lawsuit on behalf of its members even when the association itself has not suffered any direct injury. Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 342 (1977). To demonstrate standing, an association must show: 1) its members would otherwise have standing to sue in their own right; 2) the interests it seeks to protect are germane to the organization's purpose; and 3) neither the claim asserted nor the relief requested requires the participation of individual members of the organization. Id. at 343. A plaintiff seeking jurisdiction in federal court has the burden of showing that it has standing for each type of relief sought. Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009).

The first Hunt prong requires that the association show that its members would otherwise have standing to pursue a claim in their own right. Hunt, 432 U.S. at 343. A plaintiff organization must make specific allegations that at least one identified member has standing. Summers, 555 U.S. at 498. In order to have standing, a plaintiff must show that he has suffered an "injury in fact" which is "concrete and particularized . . . actual and imminent, not conjectural or hypothetical," that the injury is fairly traceable to the defendant's action, and a favorable decision is likely to redress the injury. Summers, 555 ...


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