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Gohealth, LLC v. Simpson

United States District Court, Seventh Circuit

November 26, 2013

GoHealth, LLC, Plaintiff,
Paul Simpson, Joseph LoConti, Jake Mendell, Zoom Health, Inc., Lighthouse Insurance Group, LLC, Chuck Farro, and Jason Farro, Defendants.


EDMOND E. CHANG, District Judge.

Plaintiff GoHealth, LLC brings this lawsuit against Defendants Zoom Health, Inc., Paul Simpson, Joseph LoConti, and Jake Mendell (collectively, the Zoom Defendants), and against Lighthouse Insurance Group, LLC, Jason Farro, and Chuck Farro (collectively, the Lighthouse Defendants), asserting a variety of Illinois state-law claims arising out of a failed business relationship between GoHealth and Defendants.[1] R. 71, Second Am. Compl. GoHealth's claims include breach of contract, breach of fiduciary duty, fraud, and other business torts. Id. ¶ 1. For their part, the Zoom and Lighthouse Defendants have counterclaimed against GoHealth, bringing similar state-law claims of their own. R. 22, Countercl. Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendants have filed a partial motion to dismiss GoHealth's complaint and GoHealth has filed a motion to dismiss all of Defendants' counterclaims. R. 11; R. 29. For the reasons that follow, the motions are granted in part and denied in part.

I. Background

In evaluating the parties' motions to dismiss, the Court accepts as true the factual allegations in the complaint and counterclaims and draws reasonable inferences in GoHealth's and Defendants' favor (respectively). Ashcroft v. Al-Kidd, ___ U.S. ___, 131 S.Ct. 2074, 2079 (2011).

A. GoHealth's Complaint

In April 2011, GoHealth and the Zoom Defendants entered into a business venture together to sell health insurance. Second Am. Compl. ¶¶ 16-19. Specifically, GoHealth and Zoom signed a Business Development Services Agreement, which required the parties to "work together to generate a high volume of sales of individual health insurance policies." Id. ¶ 17 (internal quotation marks omitted). Defendants Simpson and Mendell, who were licensed health insurance agents in Illinois, signed separate Agent Producer Agreements with GoHealth that authorized the two to "market and sell insurance products offered by and through GoHealth and its authorized carriers." Id. ¶¶ 18-19. These agreements required GoHealth to provide health-insurance sales leads to Zoom in exchange for a fee per lead. See id. ¶ 20.

Initially, all went according to plan. From March to June 2012, GoHealth provided health insurance leads to Zoom and Zoom paid GoHealth for those leads. Id. ¶¶ 20-21. GoHealth also provided Zoom, Simpson, and Mendell advance commissions for the policies that Simpson and Mendell sold, which were considered loans to Zoom, Simpson, and Mendell. Id. ¶ 22. But at some point, the relationship soured. Zoom allegedly stopped paying GoHealth for sales leads, leaving an outstanding balance of $214, 092.50. Id. ¶ 21. And Zoom, Simpson, and Mendell allegedly stopped repaying GoHealth's sales-commission loans, resulting in a balance of $1, 244, 063. Id. ¶ 23. The Zoom Defendants have also allegedly failed to pay $35, 231 in administrative and processing fees. Id. ¶ 24.

In an effort to resolve these disputes, the parties started to negotiate in June 2012. Id. ¶ 25. GoHealth claims that it twice reached agreements with Zoom and LoConti (one of Zoom's principals and owners) to settle the unpaid amounts, but Zoom and LoConti subsequently reneged on these agreements. See id. ¶¶ 25-31. Instead of honoring these settlement agreements, GoHealth alleges that Zoom began to secretly transfer its assets to Lighthouse Insurance Group, LLC, in order to avoid Zoom's obligations to GoHealth while these negotiations were ongoing. See id. ¶¶ 32-33. GoHealth alleges that the Zoom and Lighthouse Defendants executed a sham transaction in which Zoom's assets were transferred to Lighthouse for a nominal sum and Zoom's principals, employees, and operations moved to Lighthouse but remained under Zoom's control. Id. ¶ 34. As part of the deal, in August, LoConti informed GoHealth representatives that Zoom had sold its primary assets to Lighthouse for $500, 000 and that the proceeds were insufficient to cover the debts Zoom allegedly owed to GoHealth. Id. ¶ 37. Simpson and Mendell, moreover, allegedly accepted control positions at Lighthouse, and Simpson and LoConti allegedly became Lighthouse owners. Id. ¶ 40. Several former Zoom employees likewise took "virtually identical" positions in Lighthouse. Id. ¶ 41. To ensure that Zoom had no remaining assets to pay GoHealth with, Zoom and Lighthouse allegedly negotiated with insurers to assign Zoom's commissions and other payables to Lighthouse. Id. ¶¶ 43-44. Because of this alleged misconduct, GoHealth, despite being Zoom's largest creditor, has not received any payments from Zoom. Id. ¶ 38.

One of GoHealth's claims asks to recoup the costs it incurred in dealing with an investigation of Zoom's sales practices. Specifically, in December 2011, GoHealth claims it learned of a North Carolina Department of Insurance investigation into the sales practices of Zoom, including the alleged use of improperly licensed agents and non-approved sales scripts. Id. ¶¶ 102-04. GoHealth later hired legal counsel to represent its interests. Id. ¶ 105. GoHealth alleges that its contracts with Zoom, Simpson, and Mendell require that they indemnify GoHealth for its legal expenses stemming from this investigation. See id. ¶¶ 100-01. GoHealth further alleges that "it was agreed that Zoom and/or Simpson and Mendell would indemnify and defend GoHealth against any cost or expenses related to this investigation, " id. ¶ 106, but Zoom, Simpson, and Mendell have allegedly failed to indemnify GoHealth, id. ¶ 110.

After all this, GoHealth filed a lawsuit, which was removed to federal court. R. 1. The currently operative complaint is the second amended complaint, which has eleven counts. Counts One and Two allege that the Zoom Defendants breached their contracts with GoHealth. Id. ¶¶ 45-72. Count Three alleges that LoConti, Simpson, and Mendell breached their fiduciary duty to GoHealth, because GoHealth was Zoom's creditor. Id. ¶¶ 73-84. In Count Four, GoHealth urges this Court to pierce Zoom's corporate veil and hold Simpson and LoConti responsible for Zoom's liabilities. Id. ¶¶ 85-98. In Count Five, GoHealth asserts a claim for indemnity against Zoom, Simpson, and Mendell for GoHealth's legal expenses in dealing with the North Carolina investigation. Id. ¶¶ 99-111. GoHealth also alleges that the Zoom Defendants (in Count Six) and the Lighthouse Defendants (in Count Nine) violated the Illinois Uniform Fraudulent Transfer Act, 740 ILCS 160/1 et seq. Countercl. ¶¶ 112-22, 137-149. Count Seven alleges civil conspiracy and Count Eight alleges aiding and abetting a breach of fiduciary duty against all Defendants. Id. ¶¶ 123-36. Finally, Counts Ten and Eleven are directed toward the Lighthouse Defendants: Count Ten asks this Court to pierce Lighthouse's corporate veil and hold the Farros personally liable, id. ¶¶ 150-59, and Count Eleven alleges that the Lighthouse Defendants tortiously interfered with GoHealth's contracts with the Zoom Defendants, id. ¶¶ 160-66. Defendants have moved to dismiss Counts Three (breach of fiduciary duty), Four (veil piercing of Zoom), and Five (indemnity). R. 11.[2]

B. Defendants' Counterclaims

Defendants have a different view of their business relationship with GoHealth. (On the motion to dismiss the counterclaims, the shoe is on the other foot and the Court assumes the truth of the counterclaims' allegations.) Defendants allege that the relationship actually began in March 2010, when Simpson became an independent contractor with GoHealth to market and sell health insurance. Countercl. ¶¶ 20-24. But Simpson and his partner, LoConti, soon concluded that a telephone call center they had planned to build in order to sell insurance policies for GoHealth would not be profitable, and ended their association with GoHealth in July 2010. Id. ¶¶ 25-27. Around October, GoHealth (through its representative, Mike Owens) told Simpson that GoHealth would soon be adding a new insurance carrier, Assurant, Inc., whose fixed-indemnity health insurance policy could make Simpson and LoConti's planned telephone call center profitable. Id. ¶ 28. GoHealth and Owens told Simpson that the sales process for fixed-indemnity policies (like Assurant's policies) was shorter than the sales process for other types of plans, and insurance sales agents could expect high commissions, strong renewal rates, and higher approval rates for fixed-indemnity policies. Id. ¶ 30. Specifically, GoHealth provided Simpson, at his request, with data about the "persistency rate" of the Assurant fixed-indemnity policy, which is the rate at which purchased Assurant policies remain in force for their full twelve-month term after purchase (the higher the persistency rate, the higher the agent commissions). Id. ¶¶ 36-38. In mid-March 2011, GoHealth eventually delivered sales projection data to Simpson, which included a 60% persistency rate, and assured Simpson that the data was "very conservative." Id. ¶¶ 38-39.

Based on GoHealth's projections for the Assurant policies, Simpson and LoConti formed Zoom, built a telephone call center, and contracted to purchase sales leads from GoHealth. See id. ¶¶ 46-54. Again, at the outset of this relationship, business was good. Defendants claim that Zoom's call-center operation was immediately successful in using their "innovative and proprietary telephone call center processes and technology" to generate more and quicker responses from GoHealth's sales leads, convert those responses to policy sales at rates far above the average, and sell high volumes of Assurant policies. Id. ¶¶ 55-56. In fact, GoHealth representatives began making regular visits to the Zoom call-center facility to observe the call-center operation and monitor live calls with sales agents to learn from Zoom's success. Id. ¶ 58. And in October 2011, Zoom actually expanded its call center. Id. ¶ 69.

But again, the GoHealth-Zoom relationship went south. Defendants allege that GoHealth relocated its Ohio call center to Chicago and started incorporating Zoom's proprietary call-center processes and technology into its new Chicago call center. Id. ¶¶ 59-67. Zoom also eventually found out that the Assurant persistency rate was actually closer to 20%, rather than the 60% that GoHealth represented it would be. Id. ¶ 41. And beginning in December 2011, Defendants allege, GoHealth began withholding, without warning or explanation, sales commissions that were due to Zoom pursuant to its contract. Id. ¶¶ 72-73. They further complain that GoHealth improperly retained Zoom's so-called "book of business, " or the renewal commissions for insurance policies originally sold and submitted by Zoom. Id. ¶ 76. Defendants also claim that GoHealth breached its contract with Zoom in other ways, including not providing detailed statements of business production, id. ¶ 77, inflating the amount of advanced-commission loans owed by Zoom to GoHealth, id. ¶¶ 78-82, delivering an insufficient volume of sales leads, id. ¶ 84, charging improper rates, id. ¶ 85, selling Zoom duplicate leads, id. ¶¶ 87-88, delaying the delivery of leads, id. ¶¶ 89-93, and erroneously insisting that all sales agents be licensed in every state that Assurant policies were sold, id. ¶¶ 94-100. Finally, when Assurant notified Zoom that it was terminating Zoom as a sales agent, GoHealth again allegedly misrepresented to Zoom that a replacement fixed-indemnity insurance product sold by Loyal American Life Insurance Co. "could be sold as quickly and as efficiently as the Assurant policies had been sold" and that the Loyal American commission rates "were as comparable to those of Assurant." Id. ¶¶ 101-02.

Defendants also allege that GoHealth interfered with a potential sale of Zoom assets. In December 2011 or January 2012, Insphere Insurance Solutions, Inc., one of GoHealth's competitors, allegedly expressed an interest in acquiring Zoom's assets, including its call-center processes and technology. Id. ¶¶ 106-07. Defendants allege that GoHealth was aware of this overture and took "affirmative steps to undermine Zoom's business" in order to make Zoom less attractive to Insphere and other potential purchasers. Id. ¶¶ 108-09. Defendants claim that GoHealth influenced Assurant to terminate Zoom as its sales agent, refused to provide a comparable substitute for the Assurant product, and withheld compensation that Zoom was earning. Id. ¶¶ 111-13. And they allege that GoHealth eventually tried to buy Zoom itself, but changed the terms of the deal at the last minute. Id. ¶¶ 115-16. Zoom was therefore "left with no alternative" but to accept Lighthouse's purchase price of $500, 000, far short of the $18 million that Insphere was willing to offer Zoom. Id. ¶¶ 117-18. And, for good measure, Defendants allege that GoHealth tried to poach Zoom employees away in violation of GoHealth's contract with Zoom. Id. ¶¶ 119-23.

Defendants therefore filed a variety of counterclaims against GoHealth. Defendants allege in Counts One and Two that GoHealth breached the Zoom Agreement and Simpson Agreement, respectively. Id. ¶¶ 124-47. In Counts Three and Four, Defendants claim that GoHealth fraudulently and negligently misrepresented the Assurant persistency rate and the quality of the Loyal American policies. Id. ¶¶ 148-80. In Count Five, Defendants claim GoHealth violated the Illinois Trade Secrets Act (ITSA), 765 ILCS 1065/1 et seq., by allegedly misappropriating Zoom's call-center technology and processes, Countercl. ¶¶ 181-90. In Count Six, Defendants claim GoHealth violated the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA), 815 ILCS 505/1 et seq., by selling Zoom duplicate sales leads instead of unique sales leads. Countercl. ¶¶ 191-98. Count Seven alleges that GoHealth was unjustly enriched by improperly retaining Zoom's so-called "book of business." Id. ¶¶ 199-204. And, finally, Count Eight alleges that GoHealth interfered with Zoom's prospective economic advantage by meddling with Zoom's potential sale to Insphere. Id. ¶¶ 205-15. GoHealth has moved to dismiss all counts. R. 29.

II. Standard of Review

"A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to state a claim upon which relief may be granted." Hallinan v. Fraternal Order of Police Chicago Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). "[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89, 94 (2007). 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) (quoting Bell Atl. v. Twombly, 550 U.S. 544, 570 (2007)). These allegations "must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. And the allegations that are entitled to the assumption of truth are those that are factual, rather than mere legal conclusions. Iqbal, 556 U.S. at 679.

Ordinarily, under Federal Rule of Civil Procedure 8(a)(2), a complaint generally need only include "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). But claims alleging fraud must also satisfy the heightened pleading requirement of Federal Rule of Civil Procedure Rule 9(b), which requires that "[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake." Fed.R.Civ.P. 9(b) (emphasis added). Thus, Rule 9(b) requires that fraud claims "state the identity of the person making the misrepresentation, the time, place, and content of the misrepresentation, and the method by which the misrepresentation was communicated to the plaintiff." Uni*Quality, Inc. v. Infotronx, Inc., 974 F.2d 918, 923 (7th Cir. 1992) (internal quotation marks omitted). Put differently, fraud claims "must describe the who, what, when, where, and how of the fraud." Pirelli, 631 F.3d at 441-42 (internal quotation marks and citation omitted).

III. Analysis

A. Defendants' Motion to Dismiss GoHealth's Complaint

Defendants move to dismiss Counts Three (breach of fiduciary duty), Four (veil piercing of Zoom), and Five (indemnity) of GoHealth's Second Amended Complaint for failure to state a claim upon which relief can be ...

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