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Omert v. Freundt & Associates Insurance Services, Inc.

United States District Court, D. New Jersey

December 20, 2018

EDWARD OMERT, Plaintiff,


          JEFFERY A. DONNER STRYKER, TAMS & DILL LLP TWO PENN PLAZA EAST 12TH FLOOR NEWARK, N.J. 07105 Attorneys for Plaintiff Edward Omert.

          GERALD J. DUGAN MICHAEL J. LORUSSO DUGAN, BRINKMANN, MAGINNIS & PACE, ESQS. 1880 JOHN F. KENNEDY BOULEVARD STE. 1400 PHILADELPHIA, PA 19103 Attorneys for Defendants Freundt & Associates Insurance Services, Inc. and C. Kent Freundt.

          ALEXANDER G.P. GOLDENBERG CUTI HECKER WANG LLP 305 BROADWAY SUITE 607 NEW YORK, NY 10007 Attorney for Defendant Vincent Vitiello.


          NOEL L. HILLMAN, U.S.D.J.

         This case is a breach of contract and intentional interference with prospective economic advantage action brought under New Jersey common law. Presently before the Court are three motions for summary judgment: Plaintiff Edward Omert's Motion for Summary Judgment, Defendant C. Kent Freundt's Motion for Summary Judgment, and Defendant Vincent Vitiello's Motion for Summary Judgment. For the reasons expressed herein, this Court will deny Plaintiff's Motion for Summary Judgment and grant Defendant Freundt's and Defendant Vitiello's Motions for Summary Judgment.


         The Court takes its facts from the statement of facts provided by the parties and will note any disputed facts where appropriate.

         This case was brought by Plaintiff Edward Omert, a leader in annuity marketing. In August 2012, Plaintiff was contacted by Defendant Freundt & Associates Insurance Services, Inc. t/a The Producers Group (“TPG”) concerning potential business opportunities. TPG is an Independent Marketing Organization (“IMO”) based in California which focuses primarily on life insurance product sales. Defendant C. Kent Freundt is the President and majority owner of TPG. Defendant Vincent Vitiello was the Executive Vice President of TPG's East Coast Division at the time.[1] Vitiello was the individual who reached out to Omert concerning an idea to have Omert help TPG grow its annuity business.

         Shortly after receiving this initial contact, Omert met with Vitiello and Freundt to start discussions. Omert, after further communications, sent a spreadsheet in October 2012 to both Freundt and Vitiello proposing a rough financial structure for TPG's so-called Annuity and Linked Benefits Division (the “Annuities Division”). This was revised, and after a trip to San Diego several months later, was converted into a document entitled “Term Sheet/Agreement/Structure” (the “Term Sheet”). This Term Sheet, the circumstances of its creation and dissemination, and the discussions between the parties about it - both before and after it was signed - comprises the factual lynchpin of this case.

         The Term Sheet, which was initially sent to TPG in February 2013, generally states the following:

• Plaintiff would head the Annuities Division,
• Plaintiff's title would be Senior VP of Annuities and Linked Benefit Products,
• Plaintiff would be both a co-owner of the Annuities Division and an employee of TPG,
• Plaintiff would work out of his New Jersey home, but would also be given an office in San Diego,
• Plaintiff would be responsible for his own expenses,
• Plaintiff would receive no salary, but would be entitled to a revenue split based on the amount of sales made as compared to a baseline, and
• Plaintiff would co-own any sales methodologies or systems Plaintiff developed while working for TPG.

         In addition to the Term Sheet and at the same time, Omert sent an analysis, specific recommendations, and a chronology for building the Annuities Division.

         Freundt signed the Term Sheet on May 22, 2013. Once Omert received it, he stated he signed it and sent it back via regular mail to Freundt. (Pl.'s Br. 5.) However, the parties disagree as to whether the Term Sheet was ever signed and sent by Omert. Defendant TPG argues they never received the Term Sheet and Omert admits he never informed TPG that he had signed the Term Sheet and was sending it back to them. Defendant TPG asserts Omert has never produced a signed copy during the litigation. Unless TPG is challenging the authenticity, it appears Plaintiff has produced a signed agreement. (Rosen Certification Ex. 23.) Thus, if any dispute of fact exists, it appears to be a dispute over whether TPG received a copy (at the time) of the Term Sheet signed by Omert.

         After allegedly signing the agreement, Omert exchanged several emails with Freundt, Vitiello, and other TPG employees. The details of these emails will be discussed as relevant, infra. For the sake of context, this Court notes the emails generally discussed financial reports requested by Omert, questions on the Term Sheet sent by Freundt, and scheduling various meetings and calls.

         Eventually, Freundt emailed Omert letting him know he would like to put everything on hold for a few months. Omert responded. This email is discussed at length, infra. Omert turned his attention to Vitiello, who exchanged emails and calls with him concerning the Term Sheet and arrangements for the Annuities Division. Eventually, the parties ended discussions and did not communicate between August and December 2013. On December 16, 2013, Vitiello emailed Omert to let him know TPG would be outsourcing its annuities program to Dressander/BHC (“Dressander”). In July 2013, TPG, Vitiello, and Freundt started negotiations with Dressander to outsource its annuities sales. Omert responded the next day, stating his belief that an agreement had been reached to pursue the Annuities Division proposed by Omert.

         Plaintiff Omert filed a complaint in this Court on May 5, 2016 against Defendants TPG, Freundt, and Vitiello. The complaint includes four counts: breach of contract, breach of the implied covenant of good faith and fair dealing, and unjust enrichment against TPG and intentional interference with prospective economic advantage against Freundt and Vitiello. Defendant Vitiello moved to dismiss the sole claim asserted against him on June 30, 2016.[2] This Court denied that motion via Opinion and Order on January 31, 2017. Discovery ensued and the instant motions for summary judgment were filed on May 25, 2018. The motions are fully briefed and ripe for adjudication.


         A. Subject ...

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