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Case Number: CACE-21-010364 Division: 03
Filing # 127431022 E-Filed 05/24/2021 06:05:45 PM
IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
Case No:
USA MEDICARE ADVISORS INSURANCE AGENCY LLC,
a Florida Limited Liability Company,
Plaintiff.
Vv.
ELITE HEALTH INVESTMENTS, INC.,
a Florida Profit Corporation,
Defendant.
/
COMPLAINT
Plaintiff, USA Medicare Advisors Insurance Agency LLC (hereinafter, “Plaintiff” or
“UMA”), a Florida Limited Liability Company, by and through undersigned counsel, files this
Complaint against Defendant, Elite Health Investments, Inc. (“Defendant”), a Florida Profit
Corporation, (wherein UMA and Defendant may be collectively referred to herein as “the Parties”)
and, in support of relief from this Court, states as follows:
VENUE AND JURISDICTION
1 This is an action for damages that exceeds Thirty Thousand Dollars ($30,000.00),
exclusive of interest, attorney’s fees, and costs, and is otherwise within the jurisdiction of this Court.
2. Atall times material hereto, Plaintiff was and is a resident of Broward County and is
otherwise sui juris.
3 Specifically, Plaintiffis a company organized under the laws of the State of Florida
with its principal place of business within this county.
4 Upon information and belief, and at all times material hereto, Defendant was a
#** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 05/24/2021 06:05:41 PM.**#*
corporation incorporated in the State of Florida and maintained continuous and systematic general
business contact with this county by operating, conducting, engaging in, or carrying on a business
within this district. See Exhibit A (a true and accurate screenshot of Defendant’s Sunbiz corporate
record).
5 Upon information and belief, and as set forth in greater detail below, Defendant
breached a contract in Florida by failing to perform acts required to be performed in this county by a
valid and binding contract between the Parties. See Fla. Stat. § 48.193(1)(a)(7).
6. Venue is proper in this district because the cause of action accrued in this district.
FACTUAL ALLEGATIONS
7 Since approximately 2017, UMA has served as an insurance agency which advises
Medicare beneficiaries on what plans to choose to best suit their medical and financial needs.
8 Specifically, UMA offers Medicare Supplements and Prescription Drug coverage
options to current and prospective customers.
9 In the course of its business, UMA routinely hires, engages, or otherwise retains
downline agents to generate clients leads and sell Medicare Supplement Policies (“the Services”).
10. On or around October 26, 2020, UMA engaged the Defendant to render the Services
in exchange for agreed-upon compensation.
11. The Parties executed the USA Medicare Insurance Solutions LLC Downline Agent
Agreement (“the Agreement”) which provided that the term of the Agreement would begin on the
Effective Date, i.e., October 26, 2020, and continue until terminated or modified by the Parties
pursuant to the terms of the Agreement.
12. A true and correct copy of the countersigned Agreement is attached hereto as Exhibit
13. Defendant’s compensation is governed by the terms and provisions of the Payment
Section of the Agreement, which provides that, “For each Medicare Supplement Policy [Defendant]
sells, [UMA] shall pay [Defendant] a one-time payment (hereinafter, “the Cash Purchase Price”),
subject to chargebacks, volume requirements, and subsequent adjustment in connection with
Quarterly Reviews as set forth in subsection (c) below, pursuant to the following commission
schedule... .” See Exhibit B, at 6 (emphasis supplied).
14. “Chargebacks” are defined as the right of UMA to full repayment of the Cash
Purchase Price upon termination of a policy due to (i) fraud, misrepresentation, or violation of
applicable law on the part of the insured or the Downline Agent at any time, or (ii) the failure of the
insured to make greater than six (6) premium payments for any reason. See id. at 7.
15. Chargebacks are prorated such that, upon the insured’s sixth failure to make a
premium payment, the Downline Agent, i.e., Defendant in this case, is responsible for the
chargeback of a prorated decreasing amount of seventeen percent (17%) per payment, up to the
twelfth payment. Jd.
16. After the policy holder’s twelfth payment, all chargebacks cease. /d.
17. Pursuant to the Survival Section of the Agreement, the contractual provisions
regarding UMA’s entitlement to receipt of chargebacks survives termination of the Agreement. /d. at
11 (“Sections 3(c), 4(a)(i), 6, 7, 8, 9, 10 and 11 shall survive the termination or earlier expiration of
this Agreement.”).
18. The Agreement further contains an Exclusivity Section providing that, “[Defendant]
hereby acknowledges and agrees that it shall exclusively solicit, negotiate, and sell Medicare
supplement insurance on behalf of [UMA] and on behalf of no other person or entity, except as
authorized by a prior written release executed by an authorized representative of the Company.”
Id. at 9 (emphasis supplied).
19. During the Parties’ course of dealing, UMA provided Defendant with marketing
materials, namely, client leads (“Marketing Materials”), which were optional at the election of the
Defendant.
20. During the term of the Agreement, UMA issued several invoices to Defendant in
connection with Marketing Materials which were commissioned and purchased by Defendant.
21. Defendant duly paid each Marketing Materials invoice issued to the Defendant with
the exception of the last six (6) invoices issued in connection with leads which were both received
and used by Defendant immediately prior to termination of the Agreement (“Outstanding Invoices”).
22. True and correct copies of the Outstanding Invoices are attached hereto as Exhibit C.
23. Around the beginning of 2021, it was brought to UMA’s attention that at least one of
Defendant’s agents, more specifically, an administrative-level member within Defendant’s company,
was actively submitting insurance policies under another hierarchy, i-e., on behalf of another person
or entity that was unaffiliated and unrelated to UMA, without a prior written release from an
authorized UMA representative.
24. Believing this to be a material breach of, ata minimum, the /xc/usivity Section of the
Agreement, UMA retained undersigned counsel to remit a notice of termination letter (“Termination
Letter”) to Defendant’s counsel on or around February 8, 2021.
25. A true and correct copy of the Termination Letter is attached hereto as Exhibit D.
26. The Termination Letter provided written notice of UMA’s immediate termination of
the Agreement in accordance with UMA’s contractual right of termination and the notice provision
set forth in the Agreement. See Exhibit B, at 10-11.
27. Defendant’s counsel acknowledged, and confirmed receipt of, the Termination Letter
on or around February 9, 2021.
28. Thereafter, Defendant ceased making payments on the chargebacks that continued to
accrue to UMA in connection with policies which Defendant had sold, despite being contractually
obligated to pay any such accrued balance (and to continue to pay any such accrued balance for
another twelve months after Defendant sold its last policy).
29. As of the filing of this Complaint, the total accrued chargebacks owed to UMA are in
excess of $50,000.00.
30. Likewise, the last payment received by UMA for Marketing Materials used by
Defendant was received on February 5th, several days prior to termination of the Agreement.
31. Following UMA’s termination of the Agreement, Defendant refused to satisfy the
total remaining balance for Marketing Materials reflected in the Outstanding Invoices, in the amount
of $70,461.67. See Exhibit C.
32. Despite engaging in good faith negotiations to amicably resolve the claims contained.
herein and to conserve party and court resources, UMA was forced to institute the instant proceeding
once it became apparent that Defendant had no real intention to resolve this dispute.
33. More specifically, Defendant has refused to satisfy the Outstanding Invoices
associated with Defendant’s use of the Marketing Materials and Defendant has refused to satisfy the
remaining balance due in connection with chargebacks which continue to accrue on a near-daily
basis.
34. In view of Defendant’s clear and unequivocal intention not to comply with the terms
of the Parties’ Agreement which survived termination, UMA has been forced to file the instant
complaint.
COUNT I —- UNJUST ENRICHMENT.
(Florida Common Law)
5
35. Plaintiff realleges paragraphs one (1) through thirty-four (34) as if fully set forth
herein.
36. As evidenced by the well-pled factual allegations, UMA conferred a benefit on the
Defendant when UMA created and delivered the Marketing Materials reflected in the Outstanding
Invoices to Defendant.
37. The Marketing Materials, consisting of client leads, benefitted Defendant by reducing
the time and effort that was generally required to be expended by Defendant to locate prospective
clients to whom Defendant could sell an insurance policy.
38. Pursuant to the Agreement, Defendant would then receive a commission for each
policy sold to a client lead while conserving time and resources in locating said leads.
39. Defendant had actual knowledge of this benefit given that it willingly received the
Marketing Materials and used the same to sell more policies under UMA’s hierarchy, wherein
Defendant received commissions in connection with each such policy that was sold.
40. By using the Marketing Materials to sell more policies and receive more
commissions, Defendant voluntarily accepted and retained the benefit conferred.
41. The circumstances are such that it would be inequitable for Defendant to retain the
benefit of utilizing the Marketing Materials without paying the value thereof to UMA.
42. Due to Defendant’s refusal to satisfy the total remaining balance for Marketing
Materials reflected in the Outstanding Invoices, UMA has sustained significant monetary damages at
least in the amount of the total remaining balance of $70,461.67. See Exhibit C.
COUNT II —- PROMISSORY ESTOPPEL
(Florida Common Law)
43. Plaintiff realleges paragraphs one (1) through thirty-four (34) as if fully set forth
herein.
44. Defendant promised to perform under the material and essential terms memorialized
in the Agreement, which terms include (i) payment of all chargebacks that become due and owing
under the Chargebacks Section of the Agreement, and (ii) exclusively soliciting, negotiating, and
selling Medicare supplement insurance on behalf of [UMA] and on behalf of no other person or
entity.
45. Defendant should have reasonably expected its promise to change UMA’s behavior in
reliance on said promise.
46. As aresult of Defendant’s promise to perform under the Agreement, which it failed to
uphold, UMA reasonably relied on said promise to its detriment.
47. More specifically, UMA has sustained significant monetary damages at least in the
amount of the total accrued chargebacks owed to UMA, which are currently in excess of $50,000.00.
48. Injustice can only be avoided if Defendant’s promise to perform under the terms of
the Agreement is enforced.
COUNT III - BREACH OF CONTRACT OF THE DOWNLINE AGENT AGREEMENT
(Florida Common Law)
49. Plaintiff realleges paragraphs one (1) through thirty-four (34) as if fully set forth
herein.
50. The Agreement constitutes a valid and binding written contract between the Parties.
S1. As evidenced by the countersigned Agreement, the Parties had a clear meeting of the
minds regarding the material and essential terms of their Agreement and intended to be bound by the
terms of the Agreement.
52. UMA performed all conditions precedent and/or concurrent to the bringing of this
action.
53. Defendant has breached the Agreement by failing and refusing to perform under the
terms of the Agreement including, without limitation, by failing to fully and timely make payment in
the amount of the total accrued chargebacks owed to UMA, which are currently in excess of
$50,000.00.
54. Pursuant to the Chargebacks and Survival Sections of the Agreement, Defendant was
contractually obligated to satisfy all chargebacks that became due and owing in connection with
policies which Defendant sold. See Exhibit B, at 7, 11.
55. Defendant’s obligation to pay all chargebacks instituted in connection with policies it
sold was a material and essential term of the Agreement.
56. As a result of Defendant’s material breach of the Agreement, UMA has sustained
significant monetary damages at least in the amount of the total accrued chargebacks owed to UMA,
which are currently in excess of $50,000.00.
57. Upon information and belief, Defendant further materially breached the Agreement
when at least one of Defendant’s agents, more specifically, an administrative-level member within
Defendant’s company, actively submitted insurance policies under another hierarchy, i.e., on behalf
of another person or entity that was unaffiliated and unrelated to UMA, without a prior written
release from an authorized UMA representative, during the term of the Agreement.
58. Defendant’s unauthorized actions amount to a material breach of the Exclusivity
Section of the Agreement which provides that, “[Defendant] hereby acknowledges and agrees that it
shall exclusively solicit, negotiate, and sell Medicare supplement insurance on behalf of [UMA] and
on behalf of no other person or entity, except as authorized by a prior written release executed by an
authorized representative of the Company.” Jd. at 9.
59. Due to the failure of Defendant to perform in accordance with the Agreement, UMA
has been irreparably harmed and has been forced to institute the instant proceeding to recover the
sums owed.
COUNT IV — BREACH OF CONTRACT IMPLIED IN FACT
(Florida Common Law)
60. Plaintiff realleges paragraphs one (1) through thirty-four (34) as if fully set forth
herein.
61. As evidenced by the Parties’ course of dealing, the Parties had a valid and
enforceable implied-in-fact contract with respect to the Marketing Materials.
62. During the term of the Agreement, UMA issued several invoices to Defendant in
connection with Marketing Materials which were commissioned and purchased by Defendant from
UMA.
63. On each occasion, Defendant accepted the Marketing Materials, used them to sell
policies under UMA’s hierarchy and obtain more commissions, and fully and timely paid said
invoices.
64. As such, one of the material terms of the Parties’ implied-in-fact contract was that
Defendant would reimburse UMA in the amount billed in exchange for receipt and use of the
Marketing Materials.
65. The Marketing Materials, consisting of client leads, benefitted Defendant by reducing
the time and effort that was generally required to be expended by Defendant to locate prospective
clients to whom Defendant could sell an insurance policy under UMA’s hierarchy.
66. Following UMA’s termination of the Agreement, Defendant refused to satisfy the
total remaining balance for Marketing Materials reflected in the Outstanding Invoices, in the amount
of $70,461.67, despite the fact that Defendant received and utilized the Marketing Materials to sell
more policies and receive more commissions. See Exhibit C.
67. Defendant’s failure to pay the total remaining balance for Marketing Materials
reflected in the Outstanding Invoices constitutes a material breach of the Parties’ implied-in-fact
contract.
68. As a result of Defendant’s material breach, UMA has been damaged by being
deprived of the value of its Marketing Materials, i.e., $70,461.67. See id.
COUNT V— VIOLATION OF FLORIDA’S DECEPTIVE AND UNFAIR TRADE
PRACTICES ACT
(Fla. Stat. § 501.204)
69. Plaintiff realleges paragraphs one (1) through thirty-four (34) as if fully set forth
herein.
70. Defendant engaged in a deceptive and unfair act in the conduct of its trade, which act
was the legal cause of actual damage sustained by UMA.
71. Upon information and belief, at least one of Defendant’s agents, more specifically, an
administrative-level member within Defendant’s company, actively submitted insurance policies
under another hierarchy, i.e., on behalf of another person or entity that was unaffiliated and unrelated
to UMA, without a prior written release from an authorized UMA representative, during the term of
the Agreement.
72. In addition to amounting to a material breach of the Exclusivity Section of the
Agreement, Defendant’s conduct also constitutes an unfair and deceptive trade practice because,
upon information and belief, Defendant utilized proprietary and confidential business information
and materials it garnered during its engagement with UMA to benefit a direct competitor of UMA’s,
i.e., to sell policies under a competitor’s hierarchy.
73. Defendant’s conduct has irreparably harmed UMA because, upon information and
belief, UMA’s proprietary and confidential business information was disclosed to, and/or used for
10
the benefit of, a direct competitor of UMA’s in the industry.
74. Further, UMA was injured in that policies which should have been sold under UMA’s
hierarchy for the benefit of UMA were sold under a competitor’s hierarchy for the benefit of UMA’s
competitor.
75. Defendant knew and had reason to know its actions would cause, did cause, and/or
are likely to cause economic injury to UMA’s business.
PRAYER FOR RELIEF
WHEREFORE, under Counts I-V, Plaintiff demands judgment for the following as well as
any other relief the Court deems just and appropriate:
A. An order enforcing the Agreement as stated above, requiring Defendant to reimburse
Plaintiff in the amount of (i) the full outstanding balance for Defendant’s purchase,
receipt, and use of the Marketing Materials in the amount of $70,461.67, and (ii) all
chargebacks due and owing to date (and expected to be incurred up to and until
twelve months from the date the Defendant sold its last policy under the Agreement),
as originally agreed and as evidenced by the Parties’ verbal and written exchanges;
Awarding Plaintiff damages sustained by reason of Defendant’s conduct and
adequate to compensate Plaintiff, including awarding any lost profits, reasonable
attorneys’ fees (pursuant to Fla. Stat. § 501.2105), pre-suit costs, and reputational
and brand harm caused to Plaintiff; and
For such further and additional relief this Court deems just and proper under the
circumstances.
DEMAND FOR JURY TRIAL
Plaintiff demands a trial by jury for all issues so triable.
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Date: May 24, 2021
Respectfully submitted,
By: /Mark C. Johnson/
MARK C. JOHNSON, Esq.
Florida Bar No. 0084365
FL Board Certified Expert in Intellectual Property Law
MJ@JOHNSONDALAL.COM
‘VERONIKA BALBUZANOVA, ESQ.
Florida Bar No. 1018462
VB@JOHNSONDALAL.COM
Attorneys for Plaintiff
JOHNSON | DALAL
111 N. Pine Island Road, Suite 103
Plantation, FL 33324
Tel: (954) 507-4500
Fax: (954) 507-4502
12
Preview
Case Number: CACE-21-010364 Division: 03 Filing # 127431022 E-Filed 05/24/2021 06:05:45 PM IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA Case No: USA MEDICARE ADVISORS INSURANCE AGENCY LLC, a Florida Limited Liability Company, Plaintiff. Vv. ELITE HEALTH INVESTMENTS, INC., a Florida Profit Corporation, Defendant. / COMPLAINT Plaintiff, USA Medicare Advisors Insurance Agency LLC (hereinafter, “Plaintiff” or “UMA”), a Florida Limited Liability Company, by and through undersigned counsel, files this Complaint against Defendant, Elite Health Investments, Inc. (“Defendant”), a Florida Profit Corporation, (wherein UMA and Defendant may be collectively referred to herein as “the Parties”) and, in support of relief from this Court, states as follows: VENUE AND JURISDICTION 1 This is an action for damages that exceeds Thirty Thousand Dollars ($30,000.00), exclusive of interest, attorney’s fees, and costs, and is otherwise within the jurisdiction of this Court. 2. Atall times material hereto, Plaintiff was and is a resident of Broward County and is otherwise sui juris. 3 Specifically, Plaintiffis a company organized under the laws of the State of Florida with its principal place of business within this county. 4 Upon information and belief, and at all times material hereto, Defendant was a #** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 05/24/2021 06:05:41 PM.**#* corporation incorporated in the State of Florida and maintained continuous and systematic general business contact with this county by operating, conducting, engaging in, or carrying on a business within this district. See Exhibit A (a true and accurate screenshot of Defendant’s Sunbiz corporate record). 5 Upon information and belief, and as set forth in greater detail below, Defendant breached a contract in Florida by failing to perform acts required to be performed in this county by a valid and binding contract between the Parties. See Fla. Stat. § 48.193(1)(a)(7). 6. Venue is proper in this district because the cause of action accrued in this district. FACTUAL ALLEGATIONS 7 Since approximately 2017, UMA has served as an insurance agency which advises Medicare beneficiaries on what plans to choose to best suit their medical and financial needs. 8 Specifically, UMA offers Medicare Supplements and Prescription Drug coverage options to current and prospective customers. 9 In the course of its business, UMA routinely hires, engages, or otherwise retains downline agents to generate clients leads and sell Medicare Supplement Policies (“the Services”). 10. On or around October 26, 2020, UMA engaged the Defendant to render the Services in exchange for agreed-upon compensation. 11. The Parties executed the USA Medicare Insurance Solutions LLC Downline Agent Agreement (“the Agreement”) which provided that the term of the Agreement would begin on the Effective Date, i.e., October 26, 2020, and continue until terminated or modified by the Parties pursuant to the terms of the Agreement. 12. A true and correct copy of the countersigned Agreement is attached hereto as Exhibit 13. Defendant’s compensation is governed by the terms and provisions of the Payment Section of the Agreement, which provides that, “For each Medicare Supplement Policy [Defendant] sells, [UMA] shall pay [Defendant] a one-time payment (hereinafter, “the Cash Purchase Price”), subject to chargebacks, volume requirements, and subsequent adjustment in connection with Quarterly Reviews as set forth in subsection (c) below, pursuant to the following commission schedule... .” See Exhibit B, at 6 (emphasis supplied). 14. “Chargebacks” are defined as the right of UMA to full repayment of the Cash Purchase Price upon termination of a policy due to (i) fraud, misrepresentation, or violation of applicable law on the part of the insured or the Downline Agent at any time, or (ii) the failure of the insured to make greater than six (6) premium payments for any reason. See id. at 7. 15. Chargebacks are prorated such that, upon the insured’s sixth failure to make a premium payment, the Downline Agent, i.e., Defendant in this case, is responsible for the chargeback of a prorated decreasing amount of seventeen percent (17%) per payment, up to the twelfth payment. Jd. 16. After the policy holder’s twelfth payment, all chargebacks cease. /d. 17. Pursuant to the Survival Section of the Agreement, the contractual provisions regarding UMA’s entitlement to receipt of chargebacks survives termination of the Agreement. /d. at 11 (“Sections 3(c), 4(a)(i), 6, 7, 8, 9, 10 and 11 shall survive the termination or earlier expiration of this Agreement.”). 18. The Agreement further contains an Exclusivity Section providing that, “[Defendant] hereby acknowledges and agrees that it shall exclusively solicit, negotiate, and sell Medicare supplement insurance on behalf of [UMA] and on behalf of no other person or entity, except as authorized by a prior written release executed by an authorized representative of the Company.” Id. at 9 (emphasis supplied). 19. During the Parties’ course of dealing, UMA provided Defendant with marketing materials, namely, client leads (“Marketing Materials”), which were optional at the election of the Defendant. 20. During the term of the Agreement, UMA issued several invoices to Defendant in connection with Marketing Materials which were commissioned and purchased by Defendant. 21. Defendant duly paid each Marketing Materials invoice issued to the Defendant with the exception of the last six (6) invoices issued in connection with leads which were both received and used by Defendant immediately prior to termination of the Agreement (“Outstanding Invoices”). 22. True and correct copies of the Outstanding Invoices are attached hereto as Exhibit C. 23. Around the beginning of 2021, it was brought to UMA’s attention that at least one of Defendant’s agents, more specifically, an administrative-level member within Defendant’s company, was actively submitting insurance policies under another hierarchy, i-e., on behalf of another person or entity that was unaffiliated and unrelated to UMA, without a prior written release from an authorized UMA representative. 24. Believing this to be a material breach of, ata minimum, the /xc/usivity Section of the Agreement, UMA retained undersigned counsel to remit a notice of termination letter (“Termination Letter”) to Defendant’s counsel on or around February 8, 2021. 25. A true and correct copy of the Termination Letter is attached hereto as Exhibit D. 26. The Termination Letter provided written notice of UMA’s immediate termination of the Agreement in accordance with UMA’s contractual right of termination and the notice provision set forth in the Agreement. See Exhibit B, at 10-11. 27. Defendant’s counsel acknowledged, and confirmed receipt of, the Termination Letter on or around February 9, 2021. 28. Thereafter, Defendant ceased making payments on the chargebacks that continued to accrue to UMA in connection with policies which Defendant had sold, despite being contractually obligated to pay any such accrued balance (and to continue to pay any such accrued balance for another twelve months after Defendant sold its last policy). 29. As of the filing of this Complaint, the total accrued chargebacks owed to UMA are in excess of $50,000.00. 30. Likewise, the last payment received by UMA for Marketing Materials used by Defendant was received on February 5th, several days prior to termination of the Agreement. 31. Following UMA’s termination of the Agreement, Defendant refused to satisfy the total remaining balance for Marketing Materials reflected in the Outstanding Invoices, in the amount of $70,461.67. See Exhibit C. 32. Despite engaging in good faith negotiations to amicably resolve the claims contained. herein and to conserve party and court resources, UMA was forced to institute the instant proceeding once it became apparent that Defendant had no real intention to resolve this dispute. 33. More specifically, Defendant has refused to satisfy the Outstanding Invoices associated with Defendant’s use of the Marketing Materials and Defendant has refused to satisfy the remaining balance due in connection with chargebacks which continue to accrue on a near-daily basis. 34. In view of Defendant’s clear and unequivocal intention not to comply with the terms of the Parties’ Agreement which survived termination, UMA has been forced to file the instant complaint. COUNT I —- UNJUST ENRICHMENT. (Florida Common Law) 5 35. Plaintiff realleges paragraphs one (1) through thirty-four (34) as if fully set forth herein. 36. As evidenced by the well-pled factual allegations, UMA conferred a benefit on the Defendant when UMA created and delivered the Marketing Materials reflected in the Outstanding Invoices to Defendant. 37. The Marketing Materials, consisting of client leads, benefitted Defendant by reducing the time and effort that was generally required to be expended by Defendant to locate prospective clients to whom Defendant could sell an insurance policy. 38. Pursuant to the Agreement, Defendant would then receive a commission for each policy sold to a client lead while conserving time and resources in locating said leads. 39. Defendant had actual knowledge of this benefit given that it willingly received the Marketing Materials and used the same to sell more policies under UMA’s hierarchy, wherein Defendant received commissions in connection with each such policy that was sold. 40. By using the Marketing Materials to sell more policies and receive more commissions, Defendant voluntarily accepted and retained the benefit conferred. 41. The circumstances are such that it would be inequitable for Defendant to retain the benefit of utilizing the Marketing Materials without paying the value thereof to UMA. 42. Due to Defendant’s refusal to satisfy the total remaining balance for Marketing Materials reflected in the Outstanding Invoices, UMA has sustained significant monetary damages at least in the amount of the total remaining balance of $70,461.67. See Exhibit C. COUNT II —- PROMISSORY ESTOPPEL (Florida Common Law) 43. Plaintiff realleges paragraphs one (1) through thirty-four (34) as if fully set forth herein. 44. Defendant promised to perform under the material and essential terms memorialized in the Agreement, which terms include (i) payment of all chargebacks that become due and owing under the Chargebacks Section of the Agreement, and (ii) exclusively soliciting, negotiating, and selling Medicare supplement insurance on behalf of [UMA] and on behalf of no other person or entity. 45. Defendant should have reasonably expected its promise to change UMA’s behavior in reliance on said promise. 46. As aresult of Defendant’s promise to perform under the Agreement, which it failed to uphold, UMA reasonably relied on said promise to its detriment. 47. More specifically, UMA has sustained significant monetary damages at least in the amount of the total accrued chargebacks owed to UMA, which are currently in excess of $50,000.00. 48. Injustice can only be avoided if Defendant’s promise to perform under the terms of the Agreement is enforced. COUNT III - BREACH OF CONTRACT OF THE DOWNLINE AGENT AGREEMENT (Florida Common Law) 49. Plaintiff realleges paragraphs one (1) through thirty-four (34) as if fully set forth herein. 50. The Agreement constitutes a valid and binding written contract between the Parties. S1. As evidenced by the countersigned Agreement, the Parties had a clear meeting of the minds regarding the material and essential terms of their Agreement and intended to be bound by the terms of the Agreement. 52. UMA performed all conditions precedent and/or concurrent to the bringing of this action. 53. Defendant has breached the Agreement by failing and refusing to perform under the terms of the Agreement including, without limitation, by failing to fully and timely make payment in the amount of the total accrued chargebacks owed to UMA, which are currently in excess of $50,000.00. 54. Pursuant to the Chargebacks and Survival Sections of the Agreement, Defendant was contractually obligated to satisfy all chargebacks that became due and owing in connection with policies which Defendant sold. See Exhibit B, at 7, 11. 55. Defendant’s obligation to pay all chargebacks instituted in connection with policies it sold was a material and essential term of the Agreement. 56. As a result of Defendant’s material breach of the Agreement, UMA has sustained significant monetary damages at least in the amount of the total accrued chargebacks owed to UMA, which are currently in excess of $50,000.00. 57. Upon information and belief, Defendant further materially breached the Agreement when at least one of Defendant’s agents, more specifically, an administrative-level member within Defendant’s company, actively submitted insurance policies under another hierarchy, i.e., on behalf of another person or entity that was unaffiliated and unrelated to UMA, without a prior written release from an authorized UMA representative, during the term of the Agreement. 58. Defendant’s unauthorized actions amount to a material breach of the Exclusivity Section of the Agreement which provides that, “[Defendant] hereby acknowledges and agrees that it shall exclusively solicit, negotiate, and sell Medicare supplement insurance on behalf of [UMA] and on behalf of no other person or entity, except as authorized by a prior written release executed by an authorized representative of the Company.” Jd. at 9. 59. Due to the failure of Defendant to perform in accordance with the Agreement, UMA has been irreparably harmed and has been forced to institute the instant proceeding to recover the sums owed. COUNT IV — BREACH OF CONTRACT IMPLIED IN FACT (Florida Common Law) 60. Plaintiff realleges paragraphs one (1) through thirty-four (34) as if fully set forth herein. 61. As evidenced by the Parties’ course of dealing, the Parties had a valid and enforceable implied-in-fact contract with respect to the Marketing Materials. 62. During the term of the Agreement, UMA issued several invoices to Defendant in connection with Marketing Materials which were commissioned and purchased by Defendant from UMA. 63. On each occasion, Defendant accepted the Marketing Materials, used them to sell policies under UMA’s hierarchy and obtain more commissions, and fully and timely paid said invoices. 64. As such, one of the material terms of the Parties’ implied-in-fact contract was that Defendant would reimburse UMA in the amount billed in exchange for receipt and use of the Marketing Materials. 65. The Marketing Materials, consisting of client leads, benefitted Defendant by reducing the time and effort that was generally required to be expended by Defendant to locate prospective clients to whom Defendant could sell an insurance policy under UMA’s hierarchy. 66. Following UMA’s termination of the Agreement, Defendant refused to satisfy the total remaining balance for Marketing Materials reflected in the Outstanding Invoices, in the amount of $70,461.67, despite the fact that Defendant received and utilized the Marketing Materials to sell more policies and receive more commissions. See Exhibit C. 67. Defendant’s failure to pay the total remaining balance for Marketing Materials reflected in the Outstanding Invoices constitutes a material breach of the Parties’ implied-in-fact contract. 68. As a result of Defendant’s material breach, UMA has been damaged by being deprived of the value of its Marketing Materials, i.e., $70,461.67. See id. COUNT V— VIOLATION OF FLORIDA’S DECEPTIVE AND UNFAIR TRADE PRACTICES ACT (Fla. Stat. § 501.204) 69. Plaintiff realleges paragraphs one (1) through thirty-four (34) as if fully set forth herein. 70. Defendant engaged in a deceptive and unfair act in the conduct of its trade, which act was the legal cause of actual damage sustained by UMA. 71. Upon information and belief, at least one of Defendant’s agents, more specifically, an administrative-level member within Defendant’s company, actively submitted insurance policies under another hierarchy, i.e., on behalf of another person or entity that was unaffiliated and unrelated to UMA, without a prior written release from an authorized UMA representative, during the term of the Agreement. 72. In addition to amounting to a material breach of the Exclusivity Section of the Agreement, Defendant’s conduct also constitutes an unfair and deceptive trade practice because, upon information and belief, Defendant utilized proprietary and confidential business information and materials it garnered during its engagement with UMA to benefit a direct competitor of UMA’s, i.e., to sell policies under a competitor’s hierarchy. 73. Defendant’s conduct has irreparably harmed UMA because, upon information and belief, UMA’s proprietary and confidential business information was disclosed to, and/or used for 10 the benefit of, a direct competitor of UMA’s in the industry. 74. Further, UMA was injured in that policies which should have been sold under UMA’s hierarchy for the benefit of UMA were sold under a competitor’s hierarchy for the benefit of UMA’s competitor. 75. Defendant knew and had reason to know its actions would cause, did cause, and/or are likely to cause economic injury to UMA’s business. PRAYER FOR RELIEF WHEREFORE, under Counts I-V, Plaintiff demands judgment for the following as well as any other relief the Court deems just and appropriate: A. An order enforcing the Agreement as stated above, requiring Defendant to reimburse Plaintiff in the amount of (i) the full outstanding balance for Defendant’s purchase, receipt, and use of the Marketing Materials in the amount of $70,461.67, and (ii) all chargebacks due and owing to date (and expected to be incurred up to and until twelve months from the date the Defendant sold its last policy under the Agreement), as originally agreed and as evidenced by the Parties’ verbal and written exchanges; Awarding Plaintiff damages sustained by reason of Defendant’s conduct and adequate to compensate Plaintiff, including awarding any lost profits, reasonable attorneys’ fees (pursuant to Fla. Stat. § 501.2105), pre-suit costs, and reputational and brand harm caused to Plaintiff; and For such further and additional relief this Court deems just and proper under the circumstances. DEMAND FOR JURY TRIAL Plaintiff demands a trial by jury for all issues so triable. 11 Date: May 24, 2021 Respectfully submitted, By: /Mark C. Johnson/ MARK C. JOHNSON, Esq. Florida Bar No. 0084365 FL Board Certified Expert in Intellectual Property Law MJ@JOHNSONDALAL.COM ‘VERONIKA BALBUZANOVA, ESQ. Florida Bar No. 1018462 VB@JOHNSONDALAL.COM Attorneys for Plaintiff JOHNSON | DALAL 111 N. Pine Island Road, Suite 103 Plantation, FL 33324 Tel: (954) 507-4500 Fax: (954) 507-4502 12