Eggert Agency Inc. v. NA Management Corporation

428 F. App'x 558
CourtCourt of Appeals for the Sixth Circuit
DecidedJune 29, 2011
Docket10-3223, 10-3282
StatusUnpublished
Cited by7 cases

This text of 428 F. App'x 558 (Eggert Agency Inc. v. NA Management Corporation) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Eggert Agency Inc. v. NA Management Corporation, 428 F. App'x 558 (6th Cir. 2011).

Opinion

GRIFFIN, Circuit Judge.

In this action, plaintiffs Eggert Agency Inc., Mount Carmel Health System, James R. Eggert, and Gregory R. Nickell filed suit against defendants Meritain Health, Inc., NA Management Corp., and North American Benefits Network, Inc., asserting several claims relating to defendants’ performance of obligations required under a share purchase agreement. Following a four-day bench trial, the district court found in favor of plaintiffs, awarding significant monetary damages, but declining to award prejudgment interest. Both parties filed timely appeals. Defendants appeal the issue of damages, only. Plaintiffs cross-appeal the district court’s refusal to award prejudgment interest. Upon review, we affirm in part, reverse in part, and remand.

I.

In 2003, plaintiffs Eggert Agency, Inc. (“Eggert Agency”) and Mount Carmel Health System (“Mount Carmel”) sold EV Benefits Management, Inc. (“E-V”), a central Ohio third-party administrator (“TPA”), to two affiliated corporations, defendants NA Management Corp. and North American Benefits Network, Inc. (collectively “NABN”). At that time, Eggert Agency and Mount Carmel were the only shareholders of E-V, while plaintiffs James R. Eggert and Gregory R. Nickell were E-V executive officers and employees.

NABN’s acquisition of E-V was memorialized in a share purchase agreement (“SPA”) with a purchase price of $1,135,000. Twenty percent of this amount, $227,000, was paid immediately upon execution of the SPA. The remaining eighty percent of the purchase price was to be paid in the form of two seven-year subordinated term notes. However, the subordinated term notes were subject to an adjustment on the third anniversary of the acquisition’s closing. This adjustment was to be calculated as follows:

If the average Revenue for the three year period following the Closing (the “Actual Revenue”) is less than the Base Revenue Amount, the shortfall shall be multiplied by the Revenue Multiple and then by the Stock Factor and the resulting amount shall be deducted from the principal amount outstanding and reamortized at the same interest rate over the remaining four years. If the average Revenue for the three year period following the Closing is greater than the Base Revenue Amount, the excess shall be multiplied by the Revenue Multiple and then by the Stock Factor and the resulting amount shall be added to the principal amount outstanding and reamortized over the ensuing four years. Interest on the adjusted Principal Amount shall accrue from the third anniversary of the Closing.

Put more simply, the payments due during the final four years of the payment period were contingent upon the generation of revenue attributable to E-V during the first three years of the payment period *561 (the “revenue period”). Payments to Eggert and Nickell were similarly dependent upon the revenue generated by E-V during this time, as provided by the E-V Benefits Management Inc. Incentive Growth Plan (the “growth plan”), which was incorporated into the SPA. To ensure that NABN would generate revenue attributable to E-V during the revenue period, the SPA provided certain obligations:

NABN shall:

a. Introduce established marketing (i.e.broker/consultant) relationships in the Greater Columbus, Greater Toledo and other appropriate areas to the E-V Marketing personnel, as appropriate.
b. Train the E-V Marketing personnel and all other appropriate staff on all of NABN’s products and services.
c. Provide marketing materials.
d. Provide marketing support in the form of proposal generation, presentation assistance, etc., by NABN officers, directors or staff.
e. Retain an E-V marketing staff to be designated as the E-V Marketing Resource, reporting to NABN’s Executive Vice President, Marketing & Sales.
f. Provide for reasonable commission schedules for sales staff.

These obligations later passed onto defendant Meritain Health, Inc. (“Meritain”), which acquired NABN on December 23, 2004.

Before the execution of the SPA, E-V was a prominent central Ohio TPA, retaining 65 employees and averaging $4,000,000 in annual revenues. However, E-V did not perform well under the direction of defendants. At the end of the revenue period, the revenue generated by E-V was far lower than expected. Indeed, E-V lost the vast majority of its clients, beginning the revenue period with 22 clients, and ending with 2. In addition, E-V did not obtain any new clients during the revenue period. As a result of this poor performance, the adjustment that took place on the third anniversary of the acquisition’s closing resulted in significantly reduced payments to plaintiffs.

Alleging that defendants failed to honor their obligations in generating revenue attributable to E-V, plaintiffs filed suit in Ohio state court on September 7, 2007. Defendants thereafter removed the matter to the United States District Court for the Southern District of Ohio based upon diversity jurisdiction. In their complaint, plaintiffs asserted several Ohio-law claims sounding in contract and tort. Following defendants’ motion to dismiss and motion for summary judgment, plaintiffs’ sole remaining claim for breach of contract proceeded to a four-day bench trial.

On January 22, 2010, the district court entered findings of fact and conclusions of law favorable to plaintiffs. Therein, the district court concluded that defendants had breached the express requirements of the SPA by failing to introduce established marketing relationships to E-V personnel and failing to maintain E-V marketing staff. In addition, the district court found that defendants breached the duty to expend reasonable efforts and the implied covenant of good faith and fair dealing by failing to employ sufficient E-V marketing staff, closing E-V’s Columbus office, eliminating the E-V brand, and' preventing EV from obtaining Summit County, Ohio as a client.

The district court then proceeded to address the issue of damages. First, the district court found that, absent defendants’ breach of the SPA, E-V would have been able to capitalize on a promising local TPA market “exploding with opportunities.” Thereafter, the district court relied upon *562 the expert testimony of Glenn McLellan to determine the monetary value of this lost business. Specifically, the district court found that, absent defendants’ breach, EV was reasonably certain to have closed on 6% of 70 new business opportunities each year, resulting in 4 new clients per year. Multiplying these 4 clients by the average number of covered employees, 375, yielded a total of 1,500 new covered employees per year. With each covered employee generating an average of $20 in revenue per month, the district court held it was reasonably certain that E-V would have generated $30,000 in new business revenue per month, resulting in $360,000 each year. Finding that revenue generated from new clients would carry throughout the revenue period, the added revenue was found to be $360,000 for the first year, $720,000 for the second year, and $1,080,000 for the third year, yielding $2,160,000 for all three years and an average annual increase in revenue of $720,000.

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Cite This Page — Counsel Stack

Bluebook (online)
428 F. App'x 558, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eggert-agency-inc-v-na-management-corporation-ca6-2011.