Commissions payable in connection with the contracts shall be paid to [the broker dealer] . . . according to the Commission Schedule(s) . . . . Compensation to the [broker dealer's] Representatives . . . will be governed by agreement between [the broker dealer] and its Representatives and its payment will be the [broker dealer's] responsibility.
Section 9 further states that Ohio National's obligation to pay commissions pursuant to the Commission Schedule "shall survive this Agreement unless the Agreement is terminated for cause by [Ohio National]." And the Commission Schedule provides, in part, that Ohio National is to pay the broker dealer "trail commissions" in return for selling and servicing Annuities.2= = = = =Footnote 2: Trail commissions are commissions on previously sold Annuities that remain in force. The Commission Schedule provides that "[t]rail commissions will continue to be paid to the broker dealer of record while the Selling Agreement remains in force and will be paid on a particular contract until the contract is surrendered or annuitized."
[P]laintiffs' first claim is for breach of contract, based on the theory that they have standing as third-party beneficiaries of the Selling Agreements. Second, and in the alternative to the breach of contract claim, Plaintiffs allege unjust enrichment on the basis that it is unjust for Ohio National to benefit from retaining trail commissions that should have been paid pursuant to the Selling Agreements. Plaintiffs' third claim is for tortious interference with business relations. They claim that by failing to pay commissions, Ohio National interfered with the separate contracts between the broker dealers and Plaintiffs.
[F]irst, the court found that Plaintiffs' lacked standing to bring a breach of contract claim because they were not intended beneficiaries of the Selling Agreements. The district court relied heavily on Section 9 of the Selling Agreements which provides for direct payments from Ohio National to the broker dealer, while providing that Plaintiffs' compensation is the broker dealer's responsibility. Second, the court held that Appellants could not bring an unjust enrichment claim based on an issue that was expressly governed by contract. Third, the court dismissed Plaintiffs' tortious interference claim, holding that under the "refusal to deal" doctrine, Ohio National could not be held liable in tort for terminating the Selling Agreements and stopping payment on trail commissions. Rather than granting Plaintiffs leave to amend, the district court dismissed each claim with prejudice. . . .
at Page 8 of the 11Cir Opinion[O]hio National did not take on any duty vis-à-vis Plaintiffs. To the contrary, "the performance contracted for" in the Selling Agreements was that Ohio National would issue compensation only to the broker dealer, while the broker dealer would remain responsible for Plaintiffs' compensation. Id. Therefore, the Selling Agreements do not reflect an intent to benefit Plaintiffs.
(1) a benefit conferred by a plaintiff upon a defendant; (2) knowledge by the defendant of the benefit; and (3) retention of the benefit by the defendant under circumstances where it would be unjust to do so without payment.
[O]hio National is not responsible for the compensation of a broker dealer's sales representatives. Id. Therefore, the subject of Plaintiffs' claim is covered by an express contract. And as a result, Plaintiffs cannot recover under a theory of unjust enrichment.
(1) the existence of a protectible business relationship; (2) of which the defendant knew; (3) to which the defendant was a stranger; (4) with which the defendant intentionally interfered; and (5) damage.
at Page 17 of the 11Cir Opinion[O]hio National's refusal to pay commissions owed under the Selling Agreements is not, as a matter of law, an intentional interference with the contracts between the broker dealers and their sales representatives. Accordingly, we affirm the district court's finding that Plaintiffs failed to state a claim for tortious interference with business relations.