Brown & Brown, Inc. v. Ali (592 F. Supp. 2d 1009, 2009)

United States District Court for the Northern District of Illinois 2009-01-07

Citations

Full opinion text

FINAL ORDER

RUBEN CASTILLO, District Judge.

Plaintiff Brown & Brown, Inc., d/b/a Risk Management Services and Program Management Services, Inc. (“Brown”), filed this suit against its former employee, Muhammad Munawar Ali (“Ali”) for breach of a non-compete clause contained in his employment agreement. (R. 1, Compl.) Beginning on October 14, 2008, this Court held a four-day bench trial on Brown’s claims. The Court also heard evidence pertaining to Brown’s motion for contempt (R. 81) and supplemental motion for contempt (R. 134), in which Brown accuses Ali of violating a preliminary injunction previously entered by this Court. See Brown & Brown v. Ali, 494 F.Supp.2d 943 (N.D.Ill.2007). Also pending before the Court is a third motion for contempt and sanctions recently filed by Brown (R. 163), alleging that new evidence shows that Ali and other witnesses gave false testimony during the bench trial before this Court.

The Court concludes that the overwhelming evidence establishes Ali’s liability in this case and that his conduct justifies serious contempt sanctions and possible criminal prosecution for perjury.

Pursuant to Federal Rule of Civil Procedure 52, the Court hereby enters the following written Findings of Fact and Conclusions of Law, which are based upon consideration of all the admissible evidence as well as this Court’s own assessment of the credibility of the trial witnesses. To the extent, if any, that the Findings of Fact, as stated, may be considered Conclusions of Law, they shall be deemed Conclusions of Law. Similarly, to the extent that matters expressed as Conclusions of Law may be considered Findings of Fact, they shall also be deemed Findings of Fact.

FINDINGS OF FACT

I.Brown’s Business

1. Brown is a Florida corporation with its principal place of business at 220 South Ridgewood Avenue, Daytona Beach, Florida. (Agreed Facts ¶ 1.) Ali is a citizen of Illinois. (Agreed Facts ¶ 2.) The matter in controversy exceeds $75,000, exclusive of interest and costs. (See Agreed Facts ¶ 19.)

2. Brown and its subsidiaries comprise a national insurance organization broken into five divisions: retail; program management; service/third party administration; brokerage; and corporate support services. (PX002.) Brown has approximately 100 retail locations. (Parker Test, at 99:24-25; 100:1-12) Brown has more than 100 profit centers. (Snearer Test, at 574-75:23-3) Brown is among the insurance industry leaders with respect to public entity and non-profit insurance pools or trusts. (Parker Deel. ¶ 8.)

3. In January 2003, Ali began working for Brown as a wholesale insurance broker and subsequently became Brown’s Executive Vice President or “profit center leader” of the Brown & Brown Public Entity Service (“BBPES”) Chicago office. (Parker Deck ¶ 12; Ali Aff. ¶4; PX001; Ali Test, at 145:06-13, 152:16-153:05; Cothron Test, at 657:10-12; Agreed Facts ¶¶ 3-4.)

4. Before working at Brown, Ali was employed from 2001-2003 as an actuary at Governmental Risk Solutions (“GRS”), where he was responsible for pricing accounts and brokering some accounts. Before that he spent four years at Coregis Insurance (“Coregis”), where he became Pricing Leader, responsible for all actuaries and for pricing every account that Co-regis wrote. He was also in charge of a product that involved taking larger risks and restructuring insurance needs by placing various kinds of reinsurance on behalf of the company. Coregis provided insur-anee exclusively for public entities. Ali began his career in insurance at Kemper, where from 1996-97 he was an actuarial associate, pricing large workers compensation accounts. (Ali Aff. ¶ 6)

5. When procuring insurance, a wholesale broker receives the customer’s confidential information from the retail agent or other customer contact. That information may include such items as the insurance services contemplated, policy term, target price, expiring price, expiring coverage, description of operations, loss history, and exposures. After analyzing the information, the wholesale broker summarizes, assembles and provides the information to the insurance carrier based on its knowledge of the carrier and the customer. (Parker Decl. ¶ 6.)

6. After the wholesale broker learns that the carrier may be interested in insuring the customer, the broker analyzes the information provided by the carrier for the customer and then relays it to the customer. The information may be relayed in several different ways: it may come in the format of a formal proposal, or in the format of a bindable quote or a bindable carrier quote, or it may simply be conveyed over the phone or in an email. (Parker Decl. ¶ 6; Parker Test, at 73:03-74:01.)

7. The insurance industry is highly competitive and is relationship-driven. Brown treats its customer relationships as critical to its business and expends significant resources to develop, maintain, and expand these relationships. (Parker Decl. at ¶ 9; Parker Test, at 106:24-107:02; Ali Test, at 228.)

8. Brown invests in its relationships through the training and development of its brokers, and by reimbursing its brokers for customer-related expenses, including travel, meals, drinks, and sporting events. (Parker Decl. at ¶ 10; Parker Test, at 106:10-23.)

9. Given the competitive nature of the insurance industry, Brown diligently protects its customer relationships, business interests, and confidences. Brown requires its employees to safeguard all such interests as a condition of their employment with Brown. The obligation to safeguard Brown’s customer relationships, business interests, and confidences is mandated by Brown’s Employee Handbook and the employment agreements it enters into with its employees. (Parker Decl. ¶¶11, 13-14; PX001; PX002; PX003; PX007; Bangloria Test, at 548:05-18; Ra-kowski Test, at 560:02-04; Caldwell Test, at 764:01-18.)

10. The customers of BBPES’s Chicago office are the named insureds. If Brown loses a named insured, the excess premium necessarily is reduced, which in turn reduces revenue for the BBPES Chicago office. In contrast, the retail broker or administrator of an entity may change, but BBPES Chicago still may retain the entity initially associated with that retail broker or administrator as a customer. (Parker Test, at 103:12-104:03.)

11. In the case of a pool, the BBPES Chicago office’s customer is the pool and its members. If Brown loses a pool or a member of the pool, the excess premium necessarily is reduced, which in turn reduces revenue for the BBPES Chicago office. (Parker Test, at 104:11-105:01; Ali Test, at 480:04-10.)

12. Brown’s production reports note the revenue attributed to each customer, and the entities listed on the production reports as customers are the named insureds. (Parker Test, at 104:04-10.)

13. When Brown places one line of insurance for a customer, it attempts to expand the relationship and place additional lines of insurance with that same customer. This was the practice of the BBPES Chicago office. Ali taught his employee James Parker (“Parker”) to pursue additional lines of insurance with the same customer and specifically talked about this goal at Brown’s Fall 2006 retreat. Ali also engaged in this practice. For instance, he expanded Brown’s customer relationship with San Diego Schools Risk Management Joint Powers Authority (“JPA”). Brown initially placed only the buffer layer of worker’s compensation coverage for the JPA, but expanded the relationship by negotiating a deal for the JPA’s statutory layer of worker’s compensation. (PX064; PX245; Parker Test, at 107:19-108:10, 108:22-109:07, 114:03-18; Caldwell Test, at 763:14-23.)

14. Selling additional lines of insurance to customers is something brokers know to do instinctively because brokers always want to grow their business by obtaining additional lines of business from current clients. (Parker Test, at 108:22-109:07; Caldwell Test, at 763:14-23.)

15. One of the reasons Brown invested substantial sums of money in customer entertainment and allowing brokers to attend conferences with clients was to develop customers relationships so that Brown could obtain additional lines of business from its customers. (Parker Test, at 108:11-21; Caldwell Test, at 763:14-23.)

II. Ali’s Employment With Brown

16. As a condition of his employment, Brown required Ali to enter into a Employment Agreement with Brown that included customer non-solicitation, employee no-hire, and confidentiality provisions. (Parker Decl. ¶ 13; PX001; Ali Test, at 146:01-23, 151:02-152:10; Caldwell Test, at 764:08-18; Agreed Facts ¶ 10.)

17. The confidentiality provision in Ali’s Employment Agreement provides:

Employee recognizes and acknowledges that the confidential Information (as hereafter defined) constitutes valuable, secret, special, and unique assets of Company. Employee covenants and agrees that, during the term of this Agreement and for a period of two (2) years following termination of Employee’s employment with the Company for any reason (whether voluntary or involuntary), Employee will not disclose the Confidential Information to any person, firm, corporation, association, or other entity for any reason or purpose without the express written approval of Company and will not use the Confidential Information except in Company’s business. It is expressly understood and agreed that the Confidential Information is the property of Company and must be immediately returned to Company upon demand. The term ‘Confidential Information’ includes all information, whether or not reduced to written or recorded form, that is related to Company and that is not generally known to competitors of the Company nor intended for general dissemination, whether furnished by Company or compiled by Employee, including but not limited to: (i) lists of the Company’s customers, insurance carriers, Company accounts and records pertaining thereto; and (ii) prospect lists, policy forms, and/or rating information, expiration dates, information on risk characteristics, information concerning insurance markets for large or unusual risks, and all other types of written information customarily used by Company or available to the Employee. Employee understands that it is Company’s intention to maintain the confidentiality of this information notwithstanding that employees of Company may have free access to the information for the purpose of performing their duties with Company, and notwithstanding that employees who are not expressly bound by agreements similar to this agreement may have access to such information for job purposes. Employee acknowledges that it is not practical, and shall not be necessary, to mark such information as ‘confidential,’ nor to transfer it within the Company by confidential envelope or communication, in order to preserve the confidential nature of the information.”

(PX001).

18.The non-solicitation provision in Ali’s Employment Agreement provides:

For a period of two (2) years following termination of Employee’s employment with the Company for any reason (whether voluntary or involuntary), Employee specifically agrees not to solicit, divert, accept, nor service, directly or indirectly, as insurance solicitor, insurance agent, insurance broker, insurance wholesaler, managing general agent, or otherwise, for Employee’s account or the account or any other agent, broker, or insurer, either as officer, director, stockholder, owner, partner, employee, promoter, consultant, manager, or otherwise, any insurance or bond business of any kind or character from any person, firm, corporation, or other entity, that is a customer or account of the Company during the term of this Agreement, or from any prospective customer or account to whom the Company made proposals about which Employee had knowledge, or in which Employee participated, during the last two (2) years of Employee’s employment with Company. For purposes of this Agreement, Employee acknowledges that informing existing clients or prospects that Employee is or may be leaving Company prior to leaving employment of Company shall be deemed to constitute prohibited solicitation under this Agreement.

(PX001.)

19. The no-hire provision in Ali’s Employment Agreement provides: “Employee agrees that Employee will not, for a period of two (2) years following termination of Employee’s employment with Company for any reason (whether voluntary or involuntary), directly or indirectly solicit or seek to induce any of the Company’s employees to leave the Company’s employ for any reason, including, without limitation,' to work for Employee or any other competitive company.” (PX001.)

20. The Employment Agreement also prohibits Ali from “Organizing Competitive Businesses” and provides: “Employee agrees that so long as Employee is working for Company, Employee will not undertake the planning or organizing of any business activity competitive with the work Employee performs.” (PX001.)

21. Ali’s Employment Agreement also provides: “In the event of a dispute concerning the terms of this Agreement, or arising out of the employment relationship created by this Agreement, the prevailing party shall be entitled to recover, in addition to any other remedy obtained, (a) all attorneys’ fees incurred in the investigation and preparation of issues for trial and in the trial and appellate proceedings, and (b) costs and expenses of investigation and litigation, including expert witness fees, deposition costs (appearance fee and transcript charges), injunction bond premiums, travel and lodging expenses, arbitration fees and charges, and all other reasonable costs and expenses.” (PX001.)

22. Ali never tried to revoke the Employment Agreement or to renegotiate it. (Ali Test, at 150:17-19.)

23. As a condition of his employment, Brown also required Ali to agree to the Employee Handbook, which specifically states that he will have access to highly confidential company information and charged him with the responsibility of keeping such information confidential. (Parker Deck ¶ 14; PX002; PX003; PX007; Agreed Facts ¶¶ 8-9.)

24. Brown invested substantial resources in employing Ali, including paying him a salary and bonuses, which exceeded $500,000 in his last year of employment, paying him for his travel and entertainment business expenses, which exceeded $115,000 in his last year of employment, providing him with a laptop, paying for his cell-phone services, and providing him with an office and administrative personnel to support his work. (Parker Decl. ¶¶ 12, 19-20; Ali Deck ¶ 27.)

25. As a Profit Center Leader, one of Ali’s goals was to grow the profitability of the Chicago BBPES office, as the more profitable his office was, the more money he personally would earn. The profit margin of Ali’s office was in excess of 35 percent. (Snearer Deck ¶ 6; PX012; Ali Test, at 153:06-19, 289:05-290:03; Agreed Facts ¶ 20.)

26. While working for Brown, Ali supervised the work of Chicago BBPES office employees, including Parker, Hasib Bangloria (“Bangloria”), and Tracy Ra-kowski (“Rakowski”). Rakowski worked for Brown from approximately October 2004 through May 2007. Bangloria worked for Brown from December 2003 to April 2007. Parker began working for Brown in 2001 and still is a Brown employee. (Parker Deck ¶ 3; Rakowski Deck ¶ 4; Bangloria Test, at 548:02-04, 549:06-18, 550:14-18.)

27. Given his position as a Profit Center Leader, Ali also worked with Brown employees in other offices, including Kevin Cothron (“Cothron”), Doug Childers Sr. (“Childers Sr.”), and Shane Caldwell (“Caldwell”). Caldwell, who worked for Brown from January 1, 2000, to February 9, 2007, had some supervisory responsibility over the BBPES Chicago office. Coth-ron worked for Brown from approximately September 2001 to February 2007. Child-ers Sr. terminated his relationship with Brown in February 2007. (Parker Deck at ¶¶ 15, 43; Cothron Deck at ¶ 5; Caldwell Deck at ¶¶ 8-9, 28; Ali Test, at 145:06-13, 253:17-25, 254:04-13; Cothron Test, at 657:07-09, 664:18-19; Caldwell Test, at 689:04-14.)

28. On February 25, 2007, Ali resigned from Brown, and his last official day with the company was March 9, 2007. (Parker Deck at ¶ 24; Ali Aff. ¶ 29; Ali Test, at 145:17-19.)

29. Ali resigned from his job when his first child was due in a couple of weeks; at trial he claimed that he had no other job lined up at that time. (Ali Test, at 255:17-256:05.) Based on the evidence in this case and Ali’s demeanor on the stand, the Court does not find Ali’s testimony credible. Instead, the Court finds that Ali, along with other former Brown employees, was planning to create an insurance company called Accretive that would compete with Brown.

III. The San Diego JPA

30. The San Diego County Schools Risk Management Joint Powers Authority, or “JPA,” is a legal entity. It is an insurance pool whose members are various public school entities located in San Diego County, California. The pool addresses its members’ insurance needs as a group, which potentially results in costs savings. (Ali Aff. ¶ 17; Starich Dep. 15-16:17-5.)

31. Since 1994, the JPA has used John Burnham Insurance Services, now known as Union Bank Insurance Services (“Burn-ham”), as its retail broker. (Starich Dep. 13-14:22-2, 18-19; 17:7-10.) John Starich (“Starich”) of Burnham has worked on the JPA account since 1994. (Starich:14:18-19.)

32. Ali has worked with Starich on various JPA lines of coverage since the late 1990s, when he was employed at Coregis. (Starich Dep. 19:14-17; 20:3-7; 148:2-7; Keller Aff. ¶ 14; Ali Aff. ¶ 17.) After joining GRS in 2001, Ali continued to work with Starich on JPA business, both on those that GRS succeeded in placing and on proposals for other lines of coverage, including workers’ compensation. (Ali Aff. ¶¶ 6, 20.)

33. During Ali’s employment at Brown, Starich selected Brown to place the workers’ compensation line of coverage for the JPA. (Ali Aff. ¶ 22.) Starich chose Brown’s services as a wholesale broker because of Ali, who Starich found to be “a very intelligent, almost brilliant individual.” (Starich Dep. 33:17-21; 52-53:17-10.) Starich viewed Ali as a broker who “does extensive review of actuarial reports and does extensive data manipulation of various loss data” which is not typical of a wholesale broker. (Starich 61:9-16.)

34. While Ali worked for Brown, Brown was the wholesale broker of record for the JPA. Ali negotiated a contract for the JPA in 2003 with Liberty Mutual regarding its buffer workers’ compensation coverage. In 2006, he negotiated another contract for the JPA with Liberty Mutual for buffer workers’ compensation, which was renewable annually for a period of three years. (Parker Decl. at ¶ 23.)

35. Under the 2006 three-year arrangement with Liberty Mutual, the policies were issued annually, subject to renegotiation. This contrasted with the 2003 contract, which bound both the carrier and the JPA for three years. (Starich Dep. 78:8-24; Levine Decl. ¶ 6; Ali Test. 285-86:21-29.)

36. The JPA was one of the largest customers of the Chicago BBPES office during Ali’s employment and accounted for approximately $600,000 in revenue during the 2006-07 policy term. (Parker Decl. at ¶ 21; Snearer Decl. ¶ 6; PX012; PX128; Parker Test, at 105:02-17; Ali Test, at 289:05-290:03; Agreed Facts ¶¶ 19-20.)

37. Just before Ali left Brown, Brown secured a two-year excess insurance policy for the JPA from Safety National, which would have brought Brown another estimated $170,000 in revenue annually. (Parker Decl. at ¶ 21; PX255; PX256.)

38. In January or February 2007, Ali informed Starich that he was unhappy and might leave Brown. Similarly, Ali contacted Gene Levine (“Levine”) of Liberty Mutual and informed him that he was resigning from Brown. Levine was surprised to hear this because in his dealings with Ali, Ali had never indicated he was unhappy at Brown. (Levine Decl. ¶ 7; Starich Dep. at 69:24-70:02.)

39. During the week of February 26, 2007, after Ali announced his resignation, he spent two days in meetings with Powell Brown and Brown employee Karl Snearer (“Snearer”), who was going to replace Ali. (Ali Aff. ¶ 31; Snearer Decl. ¶¶ 3-5, 8.) Ali informed Powell Brown and Snearer that the JPA account was possibly in jeopardy due to his departure. (Snearer Decl. ¶ 8.)

40. A few weeks later, Snearer met with Starich in San Diego in an attempt to keep the JPA account. (Snearer Test. 580:4-6; Snearer Decl. ¶ 11; Bangloria Aff. ¶ 22; Starich Dep. 90-91:18-14.) Sta-rich told Snearer that without Ali’s involvement, he would not keep the JPA account with Brown. (Starich Dep. 91-93, 99:9-16; Snearer Test. 589:5-9.)

41. Following the meeting, Snearer and Ali had a series of discussions regarding Brown providing Ali with a fee in exchange for his continued work on the JPA account. Ali first proposed to Snearer that he receive 90% of the profits earned on the account. This was such a high demand that Snearer did not feel comfortable taking it back to Powell Brown. Snearer was prepared to accept something in the 50/50 range, but Ali’s final offer was to take 88% of the profits and give Brown 12%. Contrary to Ali’s testimony, the Court finds that Ali never proposed an agreement whereby Ali would retain 60 percent and Brown 40 percent. The Court credits Snearer’s testimony that if Ali had proposed such an agreement he would have taken the proposal back to Powell Brown and tried to make it work. (Snearer Decl. ¶ 14; Ali Test, at 291:25-292:22; Snearer Test, at 602:09-23, 603:01-15, 603:21-604:16.)

42. During their negotiations, Ali pressured Snearer, telling him that Brown would lose its position as the broker of record unless Brown agreed to a deal with him. Ali also informed Snearer that he would rather see someone else get the JPA account and risk losing it permanently than see Brown benefit from the JPA account. (Snearer Decl. ¶¶ 14-15.)

43. Because Ali’s final offer was still too high in Snearer’s view, he ended his negotiations with Ali regarding the JPA. Snearer did not authorize Ali to do any further work on the JPA account. (Snearer Decl. ¶ 14; Snearer Test, at 596:24-597:01.)

44. During this period, Ali and Starich privately discussed what wholesale broker should replace Brown as the broker of record for the JPA. Starich attested that he and Ah agreed that GRS would be a “good option” in part because “Ali had a good relationship with GRS.” Despite Sta-rich’s sworn statement, Ali claims that did not recommend GRS for the broker of record position. (PX013; Starich Dep. at 103:09-104:10; Ali Test, at 295:23-297:01.) Based on the evidence and Ali’s demeanor on the stand, the Court does not find his testimony credible, and instead credits the testimony of Starich.

45. Levine of Liberty Mutual met with Snearer in early April 2007, after Ali’s departure. Levine assumed that Brown would remain as the wholesaler broker of record for the JPA and that Bangloria would handle the renewal. (Levine Decl. ¶ 10.) However, Bangloria’s role on the JPA account up to that point had been largely clerical in nature. (Starich Dep. 91; Bangloria Aff. ¶ 22.)

46. On April 3, 2007, the JPA and Sta-rich terminated Brown’s position as the wholesale broker of record for workers’ compensation and issued a letter transferring the position to GRS. The letter transferred the three-year Liberty Mutual buffer workers’ compensation coverage and the two-year Safety National excess workers’ compensation coverage from Brown to GRS. (Parker Decl. at ¶ 25; Snearer Decl. ¶ 17; PX029; Keller Test, at 325:16-326:11; Agreed Facts ¶ 23.)

47. On April 4, 2007, Starich contacted Levine and informed him that Ali was “authorized by us to provide any necessary assistance to you, and to negotiate with you on our behalf, in developing the rate proposal for that term.” Starich was hoping for a 2% decrease in premium from Liberty Mutual rather than the 2% increase in premium called for in the contract. Levine subsequently forwarded that message to his boss, and noted that the JPA had “appointed Mun Ali [as] a consultant.” (Parker Decl. at ¶ 27; Levine Decl. ¶ 12; PX030; Starich Dep. at 119:17-22; Ali Test, at 297:21-25; Agreed Facts ¶ 25.)

48. At some point before this appointment, Levine specifically told Ali that he would not be able to speak with him about the JPA renewal unless he was the broker of record or had been appointed as a consultant with authorization to deal on behalf of the JPA. (Levine Deck ¶ 12.)

49. On April 6, 2007, pursuant to the JPA’s designation of Ali as a consultant, Levine contacted Ali to obtain certain information about the JPA that was necessary in order for Liberty Mutual to create a formal quote. Levine believed that Ali had the same level of authority as GRS to negotiate on behalf of the JPA. (Levine Decl. ¶¶ 12-18; PX031.)

50. On that same day, Ali and Banglo-ria were scheduled to come to Liberty Mutual’s office to discuss business, although Levine could not recall whether he actually met with them. At that point, Bangloria was still a Brown employee, with a Brown Employment Agreement that contained the same prohibitions as Ali’s. (Levine Deck ¶ 15; Parker Deck ¶ 13; PX001; PX033; Bangloria Test, at 548:02-18; Snearer Test, at 596:24-597:01.)

51. Ali subsequently negotiated with Levine regarding the rate reduction that the JPA desired. Levine remembers speaking with Ali about the rate reduction sometime in the middle of April. (Levine Deck ¶ 16.)

52. By April 20, 2007, Ali completed his negotiations with Levine regarding the rate reduction for the JPA, and Levine sent an email to Ali and GRS confirming the rate reduction for the Liberty Mutual policy. (PX034; Keller Test, at 360:02-12; Levine Deck ¶ 17.)

53. The same commitment letter Brown had received from Safety National was used to finalize the two-year Safety National policy for the excess workers’ compensation coverage. (PX255; PX256.)

54. By July 1,2007, the Liberty Mutual and Safety National workers’ compensation policies for the JPA were bound with GRS as the broker of record instead of Brown. (PX029; Keller Test, at 354:11-355:11.)

55. Ali did not receive any compensation or other consideration for helping the JPA obtain a rate reduction for the 2007-OS renewal. (Levin Deck ¶ 20; Ali Aff. ¶ 43; Starich Dep. 160:12-20; Keller Aff. ¶ 25.)

56. Starich acknowledged that the actions taken by Ali on behalf of the JPA— his communications with Liberty Mutual about the rate reduction — are typically the responsibility of the wholesale broker of record. If the wholesale broker, like Keller, had contacted the carrier as Ali did, Starich would consider that “servicing” the JPA as part of the wholesale broker’s duties. (Starich Dep. at 121:04-13, 171:03-11.)

57. According to Keller of GRS, it is “atypical” for one broker to negotiate with the carrier when a different broker is the broker of record. According to Keller, the work Ali did on behalf of the JPA at that time is the work of a broker and is partly how the broker earns a commission. (Keller Test, at 341:18-342:03, 342:08-343:07.)

58. Keller was surprised to learn that Ali was doing such work for the JPA. He asserts that he would have been able to handle the rate reduction and was surprised to hear that Ali, in a sworn declaration submitted to the Court, stated that Keller was not up to speed on the JPA’s needs and would not have been able to handle the rate negotiation. (Ali Aff. ¶ 41; Keller Test, at 329:10-330:23, 342:04-07.)

59. Ali admits that negotiating a rate reduction is something that the wholesale broker of record ordinarily does. (Ali Test, at 298:07-12.)

60. Keller received the following compensation in his role as the broker of record for the JPA: (1) for the Liberty Mutual policy, 2007-2008 — $545,000 and 2008-2009 — $420,000; and (2) for the Safety National policy, 2007-2008 — $133,000 and 2008-2009 — $128,000. (Keller Aff. ¶¶34-35.)

IV. The New Jersey Pools

61. While employed by Brown, Ali also placed insurance coverage for the New Jersey insurance pools/trusts of School Alliance Insurance Fund (“SAIF”), School Excess Liability Joint Insurance Fund (“SEL”), Public Alliance Insurance Coverage Fund (“PAIC”), and Diploma Joint Insurance Fund (“DIP”). (Parker Deck ¶ 29; PX038; Young Test, at 617:14-618:01; Agreed Facts ¶ 28.)

62. A company called Public Entity Group Administration Services, Inc. (“PE-GAS”) administers the pools/trusts of SAIF, SEL, PAIC, and DIP. PEGAS contracts out some of its duties to another company, Risk •& Loss Managers, Inc. (“RLM”). Willard Young (“Young”) of PEGAS is responsible for, among other things, procuring insurance and reinsurance coverage for the New Jersey pools/ trusts. (Parker Decl. ¶ 29; Young Test, at 613:25-615:05; Agreed Facts ¶ 29.)

63. SEL/SAIF/DIP, along with the JPA and the Preferred Governmental Insurance Trust (“PGIT”), an insurance pool for governmental entities administered by Brown, were the largest customers of the Chicago BBPES office during Ali’s employment. (Parker Test, at 105:05-08, 105:13-17.)

64. Ali was the primary contact for SAIF, SEL, PAIC, and DIP, and he supervised the work of Rakowski and Ban-gloria related to those customers. (Parker Deck ¶ 30.)

65. Caldwell introduced Ali to Young of PEGAS sometime around 2003. (Ali Aff. ¶ 55; Young Test, at 615:06-14.)

66. Since the introduction, Ali and Young have developed a close relationship. Ali considers Young a mentor and second-father figure, and Young considers Ali a friend and a “consummate professional.” They have a mutual friendship and their families vacation together. Young testified at trial in Ali’s defense. (Young Test, at 615:19-616:19, 617:04-08.)

67. Young considers Ali one of the “most knowledgeable professionals in the procurement of reinsurance for public entity insurers” in the country. Ali gives Young “professional advice” at times. (Young Test, at 616:14-16, 616:24-617:03.)

68. Ali informed Young that he was leaving Brown to set up his own insurance brokerage company that specializes in public entity insurance sometime during the “late winter” before he left Brown. (Young Test, at 619:02-07, 619:10-18.)

69. After Ali left Brown, in February or March 2007, Young approached Ali and asked him to help on workers compensation and excess property lines of coverage for SEL. Young provided Ali with the information required to create submissions. (Ali Aff. ¶ 54; Young Test, at 620:05-11.)

70. Ali created submissions to carriers regarding the insurance coverage for SEL, and subsequently made proposals to Young for that coverage. (Young Test, at 620:09-17; PX045.)

71. Ali admitted speaking with SEL, SAIF, and DIP about their insurance coverage and working on proposals for them after he left Brown and while he was working for Accretive. (Parker Deck ¶ 31; PX012; PX024; Ali Test, at 362:11-363:12.)

72. Bangloria admitted helping Ali service SEL, SAIF, and DIP after Ali left Brown. Bangloria was on Brown’s payroll at the time, but performed work relating to SEL, SAIF, and DIP at Ali’s request. (PX045; Bangloria Test, at 551:04-552:04.)

73. Young admitted at trial to Ali’s work relating to SEL, SAIF, and DIP while Ali worked for Accretive. However, during his deposition in August 2008, Young denied that Ali had performed any work for SEL, SAIF, and DIP after joining Accretive. (Young Test, at 620:09-17, 620:21-622:12.)

74. In late March 2008, Selective Insurance (“Selective”) withdrew its renewal quote for a portion of SEL’s coverage. Selective indicated that the withdrawal was necessary due to difficult market conditions. (Young Test, at 624:19-25, 625:18-19.)

75. The withdrawal put Young in a “hard spot.” (Young Test, at 625:18-24.)

76. After receiving notice from Selective, Young called Ali, who was then working at Accretive, seeking his “professional opinion.” Young told Ali that Selective had withdrawn its renewal quote, and that Selective had used market conditions as the reason for the withdrawal. Young was unsure whether those conditions really justified the withdrawal of the renewal quote, so he called Ah to find out what was going on in the market. (Ali Test, at 399:11— 400:12; Young Test, at 625:25-626:17.)

77. Specifically, Young asked Ali if the flood insurance issues that Selective had cited as the principal reason for withdrawing the renewal quote were legitimate. Ali responded that it was a soft market and that Young should have no problem replacing the business with other carriers. (Ali Test, at 400:13-17; Young Test, at 626:18-22, 627:05-13.)

78. Young then asked Ali his opinion of several carriers and which carriers he could replace Selective with. One of the carriers Young asked about was ACE Insurance Company (“ACE”), and he asked whether ACE was a “good market” for him to consider. Ali told Young that ACE was a good market because they wrote a lot of public entity business. (Ali Test, at 401:14402:22; Young Test, at 627:14-628:03.) Young then confirmed with Ali that Rich Vincelette (“Vincelette”) was the person he should call at ACE. (Ali Test, at 402:23-403:01; Young Test, at 628:04-06.)

79. After Young spoke with Ali, Ali contacted Vincelette about SEL. Vincelette writes a portion of the insurance for the Florida Insurance Trust that Ali’s new company Accretive created. Ali and Vin-celette communicate via email or over the telephone a couple of times a week. (Young Test, at 628:18-629:11; Vincelette Dep. 11:15,15:05-10, 22:18-19, 22:24-23:06, 25:19-22, 26:03-04.)

80. Prior to 2008, Vincelette had not attempted to write the lines of coverage that Selective wrote for SEL because one of PEGAS’s partial owners, William Rue (“Rue”) and his company Rue Insurance, owned a substantial amount of stock in Selective Insurance, and therefore Vincel-ette thought that it was unlikely that PE-GAS would move the business from Selective to ACE. (Young Test, at 623:17-20, 623:24-25; Vincelette Dep. 31:09-25, 32:01-15; 69:09-21; Rue Dep. 12:13-17, 13:07-15.)

81. Given Selective’s relationship with SEL, Vincelette was “very surprised” to learn that PEGAS was considering replacing Selective as the carrier for SEL. (Vin-celette Dep. 32:16-24, 33:15-17.)

82. After Vincelette heard from Young about the potential replacement, Vincelette spoke with Ali about ACE acting as SEL’s insurer because of Ali’s experience with SEL and because Ali knew Young. Vin-celette knew that Ali and Young were friends and that Ali had a much closer relationship than he did with Young. Vin-celette asked Ali if he felt PEGAS was serious about replacing Selective with ACE, and Ali responded that if Young said so, they were probably serious about moving the account. (Ali Test, at 403:12-404:01; Vincelette Dep. 34:03-17, 34:25-35:14, 36:14-18, 42:21-43:20, 44:14-20.)

83. Ali later told Vincelette that he had spoken with Young and confirmed that PEGAS was serious about switching SEL’s insurance carrier from Selective to ACE. (Vincelette Dep. 41:15-42:06, 42:21-43:02.)

84. Thereafter, ACE supplied Young with a quote. (Young Test, at 629:12-13.)

85. During a management meeting of PEGAS in which the change in insurance coverage for SEL was discussed, Young told management that he previously “consulted” with Ali regarding the insurance placement for SEL. (Young Test, at 632:14-633:10.)

86. As of July 1, 2008, ACE began writing the first layer of insurance coverage, the risk transfer for auto liability and general liability, and the supplemental worker’s compensation insurance, for SEL. (Young Test, at 622:18-623:07, 629:21-22; Vincelette Dep. 29:03-21; 30:07-15.)

87. The new lines of coverage ACE began writing for SEL, effective July 1, 2008, amounted to roughly $2.75 to $3 million in gross premium, which Vincelette considered a “nice expansion of an existing account.” (Vincelette Dep. 30:16-19, 31:02-08.)

88. Around the same time, Young terminated Brown’s position as the broker of record for SEL and informed Ali of this termination because he thought Ali would like to “gloat.” Ali laughed upon hearing that Brown had been replaced as the broker of record. (Ali Test, at 406:08-407:11; Young Test, at 636-638:09.)

V. Brown’s Florida Non-Profit Pool

89. Prior to leaving Brown, Ali was involved in a strategic initiative by Brown to form and administer an insurance trust/ pool dedicated to non-profit entities in the state of Florida. Ali was among the members of the executive team leading Brown’s Florida non-profit initiative and headed the Chicago team working on the nonprofit initiative. (Parker Decl. ¶¶ 32, 34; Ali Test, at 154:04-06; Cothron Test, at 658; Caldwell Test, at 753:01-05.)

90. The Florida non-profit trust would create another stream of revenue for Brown, and Brown executives were excited about the non-profit opportunity. (PX070; Ali Test, at 153:16-154:03; Cothron Test, at 663:22-664:05; Caldwell Test, at 719:06-09.)

91. Brown did not share its plans for the formation of the non-profit trust with any competitors. Brown’s communications within the company about Brown’s strategy for forming the non-profit trust were confidential, and Brown employees understood that they could not disclose Brown’s strategy and plans for forming the nonprofit trust with a competitor. (Cothron Test, at 663:22-664:17.)

92. Brown’s efforts included: expending substantial resources researching those things that would be necessary to establish a non-profit pool in Florida; lobbying for the legislation to authorize the formation of the pool; identifying potential pool members; determining the various carriers’ “appetites” for the pool; and facilitating relationships with prospective pool members. (Parker Decl. ¶ 33.)

93. Brown planned for Ali’s BBPES Chicago office to act as the wholesale broker for the Florida non-profit pool. Ali “jumped” at the opportunity to place the insurance for Brown’s non-profit pool, since he felt he could put a substantial amount of money in his own pocket if he were to act as the broker. (Cothron Deck at ¶ 20; Parker Test, at 122:04-07; Ali Test, at 161:05-14.)

94. Powell Brown sought Ali’s assistance with the non-profit initiative. In February 2006, Powell Brown asked Ali for his thoughts on how to gather information about the non-profits located in Florida. A day later, Ali responded with four different approaches to gather such information and indicated that he could discuss them further the next day. The following day, Ali asked some of his BBPES Chicago employees to review information, so that they could discuss it. (PX071; Ali Test, at 168:06-13,164:07-14.)

95. Ali later provided Powell Brown with a list of specific classes of business that would be prospective targets for the non-profit trust in Florida. (Parker Deck ¶ 38; PX093.)

96. On May 24, 2006, Ali forwarded Powell Brown an outline of how he would like to see the Brown non-profit initiative progress. The “Florida Non Profit” outline, detailed, in Ali’s own words, “how we would like to see this project move forward along with suggested responsible office.” Ali suggested that seven out of the twelve enumerated steps should be handled by his office. (Parker Deck ¶ 38; PX093; Ali Test, at 170:13-177:08, 223:19-22.)

97. When an insurance company is trying to form a pool like the Florida nonprofit pool, the relationship between the wholesale broker and the carrier is critical. (Parker Test, at 119:05-19.)

98. Ali’s BBPES Chicago office engaged in a series of conversations with Vincelette from ACE, an insurance carrier with which Brown had a relationship, to determine its potential interest in working with the pool and the types of risks that it would be willing to cover. Ali led those conversations, and Parker assisted him. (Parker Deck ¶ 36; PX232; Parker Test, at 131:15-25.)

99. At one point in late 2006/early 2007, shortly before Ali left Brown, Ali prohibited Parker from contacting ACE about the Florida non-profit pool without his knowledge. (Parker Deck ¶ 36; Parker Test, at 132:01-133:24.)

100. Ali, Caldwell, and Powell Brown met with Vincelette of ACE to discuss ACE’s interest in becoming a carrier for Brown’s non-profit trust. (Caldwell Test, at 713:01-09.)

101. Ali and the rest of the Chicago team used their prior experience with forming and servicing a non-profit trust in Washington as the launching pad for the Florida non-profit pool. They gathered critical information from the Washington program so they did not have to start from scratch when contemplating underwriting guidelines, policy forms, and carrier preferences/appetites for the Florida non-profit trust. (Parker Deck ¶ 35; PX086; PX094; PX0254; Parker Test, at 78:20-79:17.)

102. By June 27, 2006, Ali and his team had created the first draft of the Florida non-profit underwriting criteria. (PX234; Ali Test, at 214:25-215:16.)

103. Brown also surveyed its retail operations in Florida, gathered detailed confidential information regarding their existing books of non-profit business, and transmitted that information to Ali and others on the Chicago team. (Parker Deck ¶ 37.)

104. Kurt Heyman (“Heyman”), a Brown employee in Florida, contacted various non-profits regarding their interest in becoming members of Brown’s non-profit trust. He then reported his efforts to the others on the team. (Cothron Test, at 663:06-13; Caldwell Test, at 721:14-17.)

105. Brown employees also contacted retail agents about moving their business into Brown’s non-profit trust. (Cothron Test, at 663:14-19; Caldwell Test, at 716:17-24, 758:06-11.)

106. Because some of the retail brokers were reluctant to provide Heyman and the BBPES Chicago office with confidential information about their non-profits, Caldwell asked Powell Brown to intervene and to directly ask those retail brokers to provide the information. (Parker Test, at 122-24; Caldwell Test, at 758:06-22.)

107. By Spring 2006, Brown had amassed a good portion of the needed information for its non-profit pool. On March 16, 2006, Heyman emailed Caldwell, Powell Brown, and others a summary of the non-profit business within Brown’s retail system. The e-mail describes a prior meeting with Mid Florida Community Services, Inc. (“Mid Florida”), noting that Childers Sr. serves on the board of a Community Action Agency and that Brown employees Mike Scholl (“Scholl”) and Hey-man previously met with the chairman of that organization, who indicated that he was more than willing to assist in Brown’s efforts. (DX35; Caldwell Test, at 750:10-23, 751:01-08.)

108. After receiving the March 16, 2006, email detailing Brown’s retail nonprofit business, Caldwell forwarded the email to Ali. Caldwell also updated Ali verbally regarding the progress of the non-profit proposal on a regular basis. (DX35; PX074; Ali Test, at 231:20-232:05, 233:01-20, 234:08-10, 237:19-239:21; Caldwell Test, at 752:17-754:03.)

109. Caldwell took an active role in creating PowerPoint presentations regarding Brown’s proposed non-profit pool. On May 18, 2006, for example, an employee of Brown’s creative department sent an email to Heyman and Scholl on Caldwell’s behalf. The email notes that Caldwell wanted Heyman and Scholl to add more content to certain sections of the non-profit pool PowerPoint presentation. (PX087; Caldwell Test, at 723:21-725:03, 725:08-11.)

110. Ali was charged with the task of analyzing confidential information received from Brown retail agents and affiliates in Florida regarding Brown customers that would be potential members of the fund, specifically, examining the customers’ risk profiles and the nature and cost of their current insurance portfolios to determine how a pooling arrangement might benefit them. (Parker Decl. ¶ 37; Parker Test, at 129:22-130:25; Ali Test, at 183:15-18, 184:13-24.)

111. To perform this work, Ali received detailed confidential information regarding Brown’s non-profit business in Florida. (Parker Decl. ¶ 37.)

112. For example, on May 17, 2006, Parker sent to Ali and others a document containing the names of non-profit entities for which Brown’s Daytona Florida office placed worker’s compensation insurance, their effective dates, premiums, payroll numbers, and other confidential information. (Parker Decl. ¶ 38; PX084.)

113. On June 16, 2006, Patricia Adams of Public Risk Underwriters (“PRU”), a Brown entity in Florida, sent Ali an email with an attached zip file called “B & B and Other Offices-Applieations Completed.zip.” The subject of the email was “Not For Profit Applications and Prospect Info,” and the zip file contained hundreds of pages of confidential information on numerous prospects for Brown’s non-profit pool in Florida, including Brown customers Agency for Community Treatment Services, Brook-wood Florida-Central, Inc., Brookwood Florida-East, Inc., Lake Community Action Agency, and Mid Florida. The information gave Brown a roadmap of the types and sizes of the non-profits that would be members of the Brown non-profit trust and the premium amounts that would be at issue. (Parker Decl. ¶ 38; PX095; Parker Test, at 125:11-126:24; Ali Test, at 188-89.)

114. Ali admits that he received this email, that it would be something he should look at as part of his job, and that it is “very probable” that he did review, but he claims to have “no active recollection” of reviewing the email. He also claims not to recall doing anything with the email, PX095, after he received it, but admitted that the documents produced during discovery suggest that he may have taken some affirmative action after receiving the email, such as forwarding it on to be put in a shared drive. (Ali Test, at 188-92.) Based on the evidence and Ali’s demeanor on the stand, the Court does not find credible his claimed lack of memory regarding this document.

115. On June 16 and June 18, 2006, someone using Ali’s user account, “mali,” saved the zip file “B & B and Other Of-fiees-Applications Completed.zip” (attached to PX095), to the hard drive of Ali’s laptop. Someone using Ali’s “mali” user account took an affirmative action twice in connection with the PX095 zip file in order to save it to the laptop hard drive two different times. Ali claims that he does not recall whether he saved this document to the hard drive. (PX095; Karchmer Decl. ¶ 3a; Ali Test, at 192:24-193:03; Karchmer Test, at 506:24-507:25; 509:05-20.) Based on the evidence and Ali’s demeanor on the stand, the Court does not find his claimed lack of memory credible.

116. Despite his prior assertions that he did not know how to open a zip file, Ali did not need any special knowledge to be able to open the zip file. The operating system on Ali’s laptop, Windows XP, automatically opens zip files when a user double clicks on them. (Karchmer Decl. ¶ 5; Karchmer Decl. Ex. A; Karchmer Test, at 510:10-521:03.)

117. On June 19, 2006, Bangloria circulated a file path to several Brown employees, including Ali and Parker, which led to a file on Brown’s network containing a list of Florida non-profit prospects about which Brown had compiled application data, along with their Federal Employer Identification Numbers, and the Brown retail office that placed insurance for that entity. Among the names on this list were Lake Community Action Agency, Brook-wood Florida-Central, Agency for Community Treatment Services, Indian River County Council on Aging (“Indian River”), and Mid Florida. (Parker Decl. ¶ 38; PX101; Parker Test, at 127:17-129:21; Ali Test, at 201:12-17, 383:02-385:08.)

118. On June 19, 2006, Patricia Adams sent Ali another email entitled “Additional Applications for Not for Profit Prospects.” Attached to this email was application data on a number of other Florida non-profits identified as prospects for the trust, including Indian River (now known as Senior Resource Alliance), along with a spreadsheet containing the names and contact information for every member of PGIT, a governmental entity pool administered by Brown. (Parker Decl. ¶ 38; PX106; Ali Test, at 193:04-05, 193:12-14, 388:20-389:07.)

119. On June 20, 2006, Ali instructed Parker, Bangloria, and another employee to gather all the data for the non-profit entities submitted to the BBPES Chicago office by Brown offices in Florida. The next day, one of Ali’s employees noted in an email that all submitted non-profit accounts had been printed. (PX111; Ali Test, at 210:04-211:06, 211:22-212:07.)

120. Although he received information about Brown’s non-profit entities on multiple occasions and even directed his employees on how to organize the materials, Ali claims that he has “no active recollection” of reviewing any of the information received about the Florida non-profits. When pushed for a more precise answer, Ali testified that he may have or may not have looked at the information. (Ali Test, at 212:17-28.) Based on the evidence and Ali’s demeanor on the stand, the Court does not find his claimed lack of memory credible.

121. Parker believes that Ali looked at and analyzed at least some of the confidential information that he received for Brown’s pool. For instance, when Parker provided Ali with information from the Daytona office, Ali immediately noticed that the data was two years old and asked to see the more current data. Parker also recalls Ali talking to him generally about the non-profits referenced and specifically about some of the information received. (Parker Decl. ¶ 39; Ali Deck ¶ 82; PX084; PX085; Parker Test, at 131:01-14; Ali Test, at 185:03-187:07.)

122. While working for Brown, Coth-ron assisted in Brown’s efforts to form a non-profit pool by pursuing legislation in Florida that would allow for the formation of such a pool. Cothron personally contacted various public officials and their staff to get the non-profit pool legislation passed. Also, Brown’s PRU office in Florida created a list of non-profits that would benefit from the non-profit legislation, and Cothron submitted that list to the Florida governor’s staff in June 2006. (Cothron Test, at 658:18-659:11, 670:15-671:09).

123. Cothron kept others at Brown, including Ali, informed of his work relating to the non-profit pool. (Cothron Deck at ¶ 19; PX100; PX112; Cothron Test, at 659:12-17, 659:23-661:11.)

124. Caldwell allocated lobbying costs for the proposed legislation between Ali’s office, Cothron’s office, and Heyman’s office at the direction of Powell Brown. (Ali Test, at 168:15-170:12; 715:06-15; Caldwell Deck ¶ 15.)

125. Various Brown employees spoke with the head of Mid Florida, Mike Geor-gini (“Georgini”), regarding Mid Florida becoming one of the founding members of Brown’s non-profit pool, and also about Georgini serving on the board of Brown’s pool and showing his support for the nonprofit legislation for which Brown was lobbying. Georgini first learned of the concept of a non-profit insurance pool from Brown during a meeting that Childers Sr. set up in Leesburg, Florida, which Hey-man and other Brown employees attended. Childers Sr. facilitated this meeting because he was on the Board of Directors of Mid Florida. (PX070; PX103; Georgini Dep. at 14:08-10, 17:06-09, 21:06-08, 34:19-35:13, 36:24-37:06, 37:13-19, 38:04-39:13, 39:25-41:04, 41:08-12, 42:21-43:10, 45:02-08, 109:15-18.; Cothron Test, at 662:01-04, 662:10-663:05, 679:17-25.)

126. Childers Sr. contacted former Florida Governor Jeb Bush on behalf of Mid Florida regarding the non-profit legislation. (PX108; Cothron Test, at 661:19— 25; Caldwell Test, at 754:14-755:25.)

127. In June 2006, Governor Bush vetoed the proposed legislation that would have allowed for the establishment of Brown’s non-profit pool. (Parker Deck ¶ 40.)

128. After the non-profit legislation was vetoed in June 2006, Brown continued its efforts relating to the Florida non-profit pool with some employees learning more about the Washington non-profit pool, working on the non-profit class codes, building up the computer system called Velocity, speaking with Vincelette of ACE in December 2006 and January 2007 about ACE’s interest for insuring the non-profit pool, and continuing to work on getting the bill passed. (Parker Test, at 99:12-23, 117:07-119:02; Cothron Test, at 678-79.)

129. Brown employees Bill Kelly (“Kelly”) and John Church (“Church”) again spoke with Georgini regarding Mid Florida joining a potential non-profit trust as one of its founding members, and Georgini serving on the board. (Georgini Dep. at 33:14-34:18, 47:03-11, 47:15-48:07, 48:14-19; 50:21-52:15,110:01-08.)

130. Brown also solicited Lifestream Behavioral Center, Inc. (“Lifestream”) to become a founding member of its nonprofit pool. Various Brown employees, including Heyman, Childers Sr., and Scholl, spoke with Lifestream’s CEO, John Cherry (“Cherry”), regarding the non-profit legislation and Lifestream becoming a member of Brown’s non-profit trust. (PX103; Cherry Test, at 428:18-20, 430:22-431:07, 431:19-23, 432:04-09.)

131. In addition, the Florida non-profit pool was discussed at the Fall 2006 retreat for BBPES Chicago employees; it was considered a viable opportunity, and the office estimated that it would bring in roughly $500,000 in revenue for that office. (PX064; PX245; Parker Test, at 111:01-113:08.)

132. In December 2006, members of Brown’s PRU office contacted Vincelette regarding ACE acting as a carrier for Brown’s proposed non-profit trust. (Caldwell Test, at 714:01-10.)

133. When Ali learned that PRU employees had contacted Vincelette directly, he was “very upset” because he thought that PRU was trying to cut him out of the non-profit pool opportunity and prevent him from being the wholesale broker. If Ali were cut out, his office would lose the revenue and he in turn would lose money. Ali contacted his boss Powell Brown to complain about the situation. Ali then contacted Caldwell, forwarding him the email he had sent to Powell Brown. (PX117; Ali Aff. ¶ 87; Ali Test, at 226:18-228:25, 230:18-231:19, 234:11-235:22; Caldwell Test, at 714:06-715:05.)

134. On January 30, 2007, new Florida Governor Charlie Crist signed legislation allowing for the formation of insurance trusts for non-profit entities. (Parker Decl. ¶ 41.)

135. That same day, Cothron sent Ali and Caldwell an email announcing that the bill had been signed, but did not send a copy of this email to the other members of the Brown team who had been working on the initiative. (Parker Decl. ¶ 42; PX119; Ali Test, at 252:04-253:05.)

VI. Formation of Accretive

136. Shortly after the non-profit bill passed in 2007, Ali, Caldwell, Cothron, and Childers Sr. terminated their employment with Brown. All of these individuals now work for Accretive Insurance Group (“Ac-cretive”) and its subsidiaries, which were formed by Caldwell in March 2007. (Parker Decl. ¶ 43; Ali Test, at 155:08-23.) Accretive is owned 100 percent by Caldwell. Accretive Insurance Agency and Non-Profit Insurance Services, Inc. (“NPIS”) are wholly owned subsidiaries of Accretive. NPIS administers a Florida non-profit insurance trust like the one Brown had proposed. Accretive Insurance Agency is the wholesale broker that places the trust’s excess insurance coverage. (Agreed Facts ¶ 30; Caldwell Decl. ¶¶ 4-5. 45; Ali Test, at 155:11-156:01; Caldwell Test, at 683:22-684:17; Ali Aff. ¶ 94.)

137. Caldwell resigned from Brown on February 9, 2007. He met with Powell Brown regarding his resignation that day, but did not tell him that he intended to work with Ali, Cothron, and Childers Sr., or that he was going to form Accretive. (Caldwell Test, at 689:15-690:07.)

138. Caldwell claims that the primary purpose of forming Accretive was to acquire niche insurance companies, and yet as of time of trial Accretive had not acquired a single insurance company. Caldwell claims that the idea of forming a nonprofit trust in Florida was an afterthought and not the main reason he created Accre-tive. However, Caldwell admits that Ac-cretive had begun work on its non-profit trust as early as March 2007. (Caldwell Decl. ¶¶ 29-30; Caldwell Test, at 784:09-785:02.)

139. Ali claimed that he decided to work for Caldwell at Accretive because Caldwell was a rainmaker and had a gift for growing revenue. (Ali Test, at 453:11— 454:14.)

140. Ali is the President of Accretive Insurance Agency and runs its day-to-day operations. In connection with this position, Ali reports directly to Caldwell. Caldwell has agreed to pay Ali an undetermined percentage of the profits of Accre-tive Insurance Agency as payment for services rendered. (Caldwell Deck ¶ 7; Ali Test, at 156:05-14; Caldwell Test, at 684:21-25, 687:10-688:09.)

141. Caldwell paid Ali’s attorneys fees for this action out of corporate proceeds until Brown filed a separate lawsuit against Accretive in Florida this year. (Caldwell Test, at 688:10-689:03.)

142. Besides Ali, Caldwell hired a number of former Brown employees, including Cothron, Childers Sr., Rakowski, and Ban-gloria, to work for his Accretive companies. (Caldwell Test, at 696:23-^698:03.)

143. Caldwell, Cothron, Childers Sr., Bangloria, and Rakowski are all defendants in a lawsuit filed by Brown in Florida stemming from their own employment agreements. (Bangloria Deck ¶44; Ra-kowski Deck ¶ 39; Caldwell Deck ¶ 67; Cothron Deck ¶ 52; Bangloria Test, at 547:24-548:01.)

144. Cothron and Childers Sr. both work for NPIS. Caldwell hired Childers Sr. to work for NPIS specifically because Childers Sr. sits on the board of several non-profits. (Caldwell Deck ¶ 38.)

145. Bangloria and Rakowski work for Accretive Insurance Agency and report to Ali. (Bangloria Test, at 549:11-18; Rakow-ski Test, at 560:18-19.)

146. Bangloria resigned from Brown on April 11, 2007, and returned his laptop to Brown on April 16, 2007. Bangloria’s last day on Brown’s payroll, April 25, 2007, was also his first day on Accretive’s payroll. Bangloria admitted to doing work for Ali relating to the New Jersey pools (SEL, SAIF, and DIP) before April 25, 2007. (Bangloria Test, at 549:14-15, 550:14-18, 551:04-552:04.)

147. Caldwell gave inconsistent testimony in his deposition and at trial regarding precisely when he returned from an extended vacation and began work on Ac-cretive. (Caldwell Deck ¶¶ 28-31; Caldwell Test, at 690:12-692:02, 692:18-693:17.)

148. Caldwell claims that he did not do anything to form a new company or do any work on Accretive from the time he resigned from Brown on February 9, 2007, until he returned from a Caribbean vacation in late March 2007. (Caldwell Test, at 693:18-694:10.)

149. Caldwell also claims that “to the best of [his] recollection” he did not talk with anyone else about forming a new company or working on a new business opportunity, or about Accretive Insurance Group, Accretive Insurance Agency, or any related company from the time he resigned until after he returned from his vacation in late March. (Caldwell Test, at 694:06-14, 696:01-08.)

150. Caldwell claims that the first time that he set up any documents with the Accretive name on them was after he contacted his accountant in March. (Caldwell Test, at 696:09-12.)

151. Caldwell also claims that Ali’s brother, Mustaque Ali (“Mustaque”), set up email addresses for Accretive after Caldwell returned from his vacation in late March. This conflicts with his deposition testimony, which was that Ali arranged for Mustaque to set up the IT and email addresses for Accretive in April. (Caldwell Test, at 696:13-699:01, 699:16-701:12, 703:21-24.)

152. Upon questioning by Brown’s counsel at trial, Caldwell admitted that he had the email address “sealdwell@ accretiveins.com” as of February 14, 2007. Caldwell claims that this email address was set up by Mustaque and was intended to be Caldwell’s personal email address. He further testified that he had no intention of forming a company called “Accre-tive” as of the time that email account was created. (PX120; Caldwell Test, at 699:02-15, 701:13-702:01, 703:09-704:01.) Based on the evidence and Caldwell’s demeanor on the stand, the Court does not find this testimony credible.

153. Email fragments discovered within Ali’s gmail account reveal that Ali also had an Accretive email address as of February 14, 2007, when he