Opinion

Jaskiewicz v. ITG Communications, LLC

Court: District Court, M.D. Tennessee
Filed: Jan 25, 2023
Cited by: 0 cases
Authority: More cited than 29.7%

in the context of determining when two corporations are affiliated for tax purposes, holding that substantially all means all except “a negligible minority”

How later courts described this case

in the context of determining when two corporations are affiliated for tax purposes, holding that substantially all means all except “a negligible minority”
a corporation’s acquisition of 65% of another employer’s assets was not “substantially all” as a matter of law, for purposes of contribution to the state unemployment compensation fund
recognizing that “the post-contract conduct of the parties can, in some circumstances, elucidate the parties’ own interpretation of their agreement”
“The law in Michigan is that sales agents are entitled to post-termination commissions for sales they procured during their time at the former employer.” (citation omitted)

Written by the judges who cited it.

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

TOM JASKIEWICZ, )

)

Plaintiff, )

)

v. ) Case No. 3:21-cv-00912

) Judge Aleta A. Trauger

ITG COMMUNICATIONS, LLC, and )

BROADBAND TECHNICAL )

RESOURCES, INC., )

)

Defendants. )

MEMORANDUM

Before the court are (1) the Motion for Partial Judgment on the Pleadings (Doc. No. 21)

filed by plaintiff Tom Jaskiewicz; and (2) the Motion for Summary Judgment filed by defendants

ITG Communications, LLC (“ITG”) and Broadband Technical Resources, Inc. (“BTR”)

(collectively with ITG, “defendants”) (Doc. No. 36.) For the reasons set forth herein, the

defendants’ motion will be granted in part and denied in part, and the plaintiff’s motion will be

denied.

I. FACTS AND PROCEDURAL HISTORY1

A. Jaskiewicz’s Employment and Termination

The parties describe BTR as a “national provider of fulfillment, construction, and project

management services to the cable and telecommunications industries.” (Compl., Doc. No. 1 ¶ 8;

1 The facts for which no citations are provided are drawn from the plaintiff’s Response to

the Defendants’ Statement of Undisputed Material Facts (Doc. No. 52) or the defendants’

Response to the plaintiff’s Statement of Material Disputed Facts (Doc. No. 60) and are undisputed

for purposes of the Motion for Summary Judgment. All statements of fact recited herein are either

undisputed or viewed in the light most favorable to the plaintiff, unless otherwise indicated.

Am. Answer, Doc. No. 31 ¶ 8.) Jaskiewicz became an employee of BTR on or around August 8,

2018. Just over a year later, on August 31, 2019, ITG acquired 100% of BTR. BTR, although

wholly owned by ITG, has remained in existence as an ongoing concern. (Doc. No. 1 ¶ 10; Doc.

No. 31 ¶ 10.)

On August 29, 2019, in connection with the acquisition of BTR by ITG, Jaskiewicz signed

a letter (“Employment Letter”) setting forth the post-acquisition terms of his employment with

BTR. (Doc. No. 26-1.) This Employment Letter states that Jaskiewicz would be employed by BTR

as Executive Vice President of Business Development. Jaskiewicz testified that his job duties

included “activities related to marketing, sales, products/service development, and customer

service to drive business growth and marketshare.” (Doc. No. 36-1, Jaskiewicz Dep. 77.)2 In

particular, his job was to obtain projects from prospective customers, such as telecommunications

companies, for the construction, improvement, and expansion of fiber network infrastructure.

The Employment Letter states that Jaskiewicz was to be “paid an annual salary of $150,000

paid bi-weekly in accordance with the BTR payroll schedule. Additionally, [he would] receive 1%

of sales made by [him], to be paid out on the payroll following invoicing.” (Doc. No. 26-1.) The

Employment Letter does not contain any express provision stating that Jaskiewicz would—or

would not—continue to receive commission payments after his employment ended. (See generally

id.)

2 The defendant filed excerpts from several deposition transcripts, rather than complete

transcripts (which would have been preferred). The court cites herein the original page numbers

of the transcripts, rather than the page numbers assigned by the court’s electronic filing system.

The court also notes that both parties have cited page numbers of deposition transcripts that

were not actually included within the excerpts that were filed, making it impossible at times for

the court to verify whether a disputed statement can be substantiated by either party. The filing of

complete transcripts would have avoided this problem.

While employed by BTR, Jaskiewicz was only entitled to a commission for a sale once an

invoice was submitted to the customer, and the amount of the commission owed was based on the

invoiced amount. In accordance with this practice, Jaskiewicz received commission payments in

checks also compensating him for salary payments every two weeks for at least part of the time

that he was employed by BTR. Jaskiewicz testified that “[t]hat was the plan” but that, shortly after

his employment, he started receiving the commission checks on a monthly basis rather than with

his payroll checks, which were issued every two weeks. (Doc. No. 36-1, Jaskiewicz Dep. 84–85.)

Then, either in late 2020 or early 2021, he was told that commissions would be paid out on a

quarterly basis. (Id. at 85.) It is undisputed that neither ITG nor BTR has a practice of making

commission payments to employees for invoices sent to customers after the employees are

terminated, but it is also undisputed that Jaskiewicz was the only salesperson ever employed by

BTR or ITG while the plaintiff was there, and BTR has never hired another person to replace him.

(Doc. No. 36-4, Killets Dep. 31.)

On September 3, 2019, also in connection with the acquisition of BTR by ITG, Jaskiewicz

signed a Sale Participation Agreement (“SPA”) with ITG. (Doc. No. 50-6.) The express purpose

of the SPA was “to provide the possibility of incentive compensation to Participant [Jaskiewicz],

a key employee of BTR[,] and to benefit the Company by creating performance incentives to the

Participant.” (Doc. No. 50-6, SPA ¶ 1.) The performance incentives were “based upon the award

of units of participation (each a ‘Performance Unit’), the value of which is related to the

appreciation in the value of BTR and resulting increase in the value of the ITG Enterprise in a sale

of the ITG Enterprise.” (Id.) Under the SPA, ITG granted Jaskiewicz two Performance Units. (Id.

¶ 2 & Schedule 1 (Doc. No. 50-6, at 6).) The SPA provides that, although the Performance Units

“vested” upon execution of the SPA, they would only become “fully matured” upon the closing of

a “Liquidity Event.” (SPA ¶¶ 3–4.) That is, Jaskiewicz would only be entitled to cash out the

Performance Units (in accordance with the valuation formula provided in SPA) upon the “Maturity

Date”—the date of the closing on a Liquidity Event. The SPA further provides that, to be entitled

to any payout, Jaskiewicz had to be employed by BTR on the Maturity Date, unless he had been

terminated “without ‘Cause’” within one year prior to the Maturity Date. (SPA ¶¶ 3, 6.) For

purposes of that limitation, the SPA defines “Cause” as:

(i) intentional misconduct in violation of written policies or directions of the Chief

Executive Officer or Board of Directors of the Company that results in a material

adverse impact to the business of BTR, ITG or any entity within the ITG Enterprise;

(ii) embezzlement; (iii) the intentional causing of material harm to the Company;

(iv) Participant’s material breach of Participant’s noncompetition agreements or

confidentiality obligations contained in such agreements; (v) Participant’s

continued unsatisfactory performance that results in material adverse impact to the

business of BTR, ITG or any entity within the ITG Enterprise following notice and

a reasonable period to cure such unsatisfactory performance; (vi) Participant’s

violation of the Company’s or ITG Enterprise’s anti-harassment policy; and (vii)

Participant engaging in unlawful or fraudulent activities relating to his job.

(SPA ¶ 6(c).)

The SPA defines Liquidity Event as “the sale of all or substantially all of the assets or

equity interests of the Company, BTR, and all of the companies constituting the ITG Enterprise to

a third party that is not affiliated to any member of the Company as of the Effective Date.” (SPA

¶ 4.) It further explains:

The parties acknowledge that it is the intent of this Agreement to provide the

Participant the ability to participate in a bona fide enterprise sale that results in the

then-equity holders receiving a profit from such event versus transactions that are

entered for other purposes such as raising capital or securing indebtedness.

(Id.)

In October 2019, Jaskiewicz provided Kevin Killets, his supervisor and BTR’s Chief

Operating Officer (“COO”), a Business Development Report summarizing the prospective clients

he was pursuing. (See Doc. No. 36-1, Jaskiewicz Dep. 88–89; Doc. No. 36-1, at 41.) This Report

identifies Blue Stream, Crown Castle Nashville, and Amazon Web Services (“AWS”) as clients

Jaskiewicz brought into BTR before its acquisition by ITG and that continued to be clients; AWS

is also identified as a client with the potential capacity to bring in an additional $10,000,000 in

work. (See Doc. No. 36-1, Jaskiewicz Dep. 92–93; Doc. No. 36-1, at 41.) In his deposition,

Jaskiewicz was somewhat unclear on whether Atlantic Broadband became a client before or after

the ITG acquisition. (See Doc. No. 36-1, Jaskiewicz Dep. 90 (“After.”); id. at 91 (“I believe we

started with . . . Atlantic. I’m having confusion with that. There are two companies.”); id. at 178

(stating affirmatively that “after the acquisition to the time of his termination,” he brought in

Atlantic Broadband).)3 Regardless, it is undisputed that, following BTR’s acquisition, the

relationship with Atlantic Broadband never brought in any additional revenue. (Id.)

Following its acquisition by ITG, BTR closed another substantial deal with AWS in early

2020 that would generate, according to Jaskiewicz, $12 million in revenue in 2020 and 2021, $3

million of which was invoiced by August 2021. (Id. at 94; Doc. No. 50-5, Jaskiewicz Decl. ¶ 8.)

While the exact figures are disputed, Killets testified that AWS was a very lucrative customer for

BTR.

Aside from AWS projects, Jaskiewicz confirmed that he did not close a deal with any of

the other potential clients identified on his Business Development Report. (Id. at 95.) He points

out, however, that he did bring in “potential” clients, including Shentel Communications

(“Shentel”) and “four or five” responses to Requests for Proposals that BTR “turned down

summarily for one reason or another.” (Id. at 178–79.) He also “revitaliz[ed]” the company’s

relationship with Crown Castle Nashville. (Id. at 179.) It is undisputed, however, that the Shentel

3 Whether Jaskiewicz brought in Atlantic Broadband as a client is disputed. According to

Kevin Killets, it was brought in prior to the acquisition by a BTR employee in Florida, Ken Keith.

(Doc. No. 36-4, Killets Dep. 62.) This dispute is not material.

opportunity ended up being much smaller than Shentel initially represented and in a remote

location. Shentel’s proposal was rejected by BTR as unprofitable, and the restored relationship

with Crown Castle Nashville only brought in $8,000 to $10,000 in revenue.

In September 2020, Mike Brooks, the CEO of ITG and BTR, encouraged Jaskiewicz to

pursue opportunities with cooperative electrical companies. (Id. at 135.) Jaskiewicz responded that

he was already reaching out to several. (Id.) He never closed deals with any of them. He testified

that he was close with one contact within one such company with which BTR was pursuing a

relationship, but he was told to “back off” from his contact, because Troy McClendon was also

pursuing the same company. (Id. at 136.)

On March 2, 2021, Jaskiewicz distributed a list of potential clients that he said he was

pursuing to Troy McClendon, a co-owner of ITG and the Chief Executive Officer (“CEO”) of the

ITG-affiliated company, Simplicity. (Doc. No. 36-1, at 50–51.) Not counting AWS (which was

not a “new” client”), Jaskiewicz did not bring in sales from any potential new clients contained on

the March 2, 2021 list. (Doc. No. 36-1, Jaskiewicz Dep. 161.)

Jaskiewicz also testified that he spent a substantial amount of time trying to land Verizon

as a client. Although BTR bid on multiple projects in 2020, Verizon never awarded a contract to

BTR. In addition, according to Jaskiewicz, his attempts to develop business for BTR following its

acquisition by ITG were seriously hampered by the Covid-19 pandemic, which had a “substantially

negative effect on [the] business in 2020.” (Doc. No. 50-5, Jaskiewicz Decl. ¶ 3.) Jaskiewicz states

in a declaration that, as of early 2020, “Verizon put a hold on all new business in the United States,”

and “most companies banned all travel and disallowed face to face meetings . . . . Conferences

were cancelled, postponed, or held virtually, and there were countless other examples of the

pandemic’s effect on the ability of business to carry out sales activities and expansion.” (Id.)

According to the defendants, Killets first expressed concern to Jaskiewicz about his lack

of sales production in a January 2021 telephone discussion. (Doc. No. 36-4, Killets Dep. 45–46;

Doc. No. 36-2, Killets Decl. ¶ 3.) Jaskiewicz characterizes this conversation as concerning the

“negative impact that the pandemic had inflicted on business opportunities.” (Doc. No. 50-5,

Jaskiewicz Decl. ¶ 4.) Further, although Killets suggested that Jaskiewicz move to Virginia to

focus on AWS projects, from Jaskiewicz’s point of view at least, he never at any time criticized

Jaskiewicz’s job performance. (Id.) They never reached an agreement about Jaskiewicz’s moving

to Virginia.

Chris Perkins, ITG’s President, also met with Jaskiewicz in May 2021 to discuss what

business opportunities Jaskiewicz was pursuing. Perkins discussed with Jaskiewicz where others

at ITG (in particular, Troy McClendon) were finding success in bringing in new business. At that

May 2021 meeting, Perkins reviewed one of Jaskiewicz’s “Pipeline Reports” of prospective clients

with him. Perkins claims that Jaskiewicz informed him at the meeting that he had not spoken with

many of the sales prospects that he had listed on his “Pipeline Report.” (Doc. No. 36-5 ¶ 5.)

Jaskiewicz, to the contrary, avers that he would never have placed a contact on a list that he had

not actually called or contacted and did not tell Perkins that he had not contacted the people or

companies on his list that were noted as having been contacted. (Doc. No. 50-5, Jaskiewicz Decl.

¶ 6.) Jaskiewicz also maintains that Perkins did not criticize his performance or express

disappointment with his efforts during that meeting. (Id.)

On July 20, 2021, Killets and Gissel Rivera, ITG’s Director of Human Resources, held a

Microsoft Teams meeting with Jaskiewicz to discuss a Performance Improvement Plan (“PIP”).

(See Doc. No. 36-1, at 52–56.) The PIP was emailed to Jaskiewicz during the course of that

meeting. The PIP states that its purpose was to “define serious areas of concern,” identify “gaps in

[Jaskiewicz’s] work performance,” and “allow [him] to demonstrate improvement and

commitment.” (Id. at 52.) The only stated “Improvement Goal” on the PIP was to “bring profitable

business to the company as per agreement signed on 09/03/2019,” the “Expected

Outcome/Measurement” of which was identified as “[s]atisfactory increase in revenue/profit base

on new business to be brought in by Mr. Jaskiewicz.” (Id.) The initial “Review Date” was to be

fifteen days later, August 4, 2021. (Id. at 53.) Under “Timeline for Improvement, Consequences

& Expectations,” the PIP states:

The purpose of this Performance Coaching Plan is to clarify the areas of our

concern for you and the actions you need to take in order to be returned to good

standing status. It is our hope that by establishing clear and measurable action

steps/goals, we will enable you to fully meet the expectations of your position. . . .

Tom Jaskiewicz is being placed on a performance improvement plan. Immediate

improvement must be noted. At any point during this 30 day review employment

may be terminated if improvement is not noted.

(Id. at 54.) The PIP expressly expired after thirty days, on August 19, 2021. (Id.) However, it also

provided that Jaskiewicz could only continue working through that full thirty days if he showed

improvement during the first fourteen days. (Id.) Killets and Rivera both met with Jaskiewicz again

on July 22, 2021 to further discuss any questions he had regarding the PIP.

After that meeting, Jaskiewicz emailed to Rivera another spreadsheet of prospective clients

that he was pursuing. Killets testified that, to satisfy the expectations imposed by the PIP,

Jaskiewicz would only have needed to bring in one profitable project from the list of the

prospective clients identified on the spreadsheet he sent to Rivera. Jaskiewicz failed to bring in

any viable business opportunities from the list (or otherwise) over the course of the next thirty

days. The one prospective client that Jaskiewicz brought to the table after the issuance of the PIP

was Shentel. As indicated above, however, the scope of that proposed project ended up being much

smaller than anticipated, and BTR never entered into a contract with Shentel.

Rivera and Killets met with Jaskiewicz via Microsoft Teams on August 23, 2021 to inform

him that he was being terminated. The written notice (“Termination Notice”) provided to

Jaskiewicz during the meeting states that the reason for termination was: “We have not had success

acquiring significant new clients in the areas you oversee.” (Doc. No. 22-2, at 1.) The Termination

Notice also informed Jaskiewicz that he would receive commissions for the third quarter of 2021

if he complied with certain requirements and that he “might be eligible for 1% of gross sales from

the start of the project through a 12-month period” related to the potential project with Shentel, if

Shentel signed a contract. (Id.)

Despite some delay, it is now undisputed that Jaskiewicz received his final salary payment

as well as commissions owed on invoices submitted during the third quarter of 2021.

BTR and ITG did not replace Jaskiewicz after he was terminated. Killets testified that BTR

decided it did not need a salesperson. (Doc. No. 36-4, Killets Dep. 31.)

Jaskiewicz maintains that no one at BTR or ITG had criticized his performance up until he

received the PIP in July 2021. (Doc. No. 50-5, Jaskiewicz Decl. ¶ 2.) The parties dispute whether

it would have been possible for Jaskiewicz to secure a new client and have it generate revenue for

the company within thirty days. (Doc. No. 60 ¶ 33.)

Jaskiewicz asserts that, throughout the time he was employed by BTR, he worked

“diligently and professionally and applied [his] skills as a salesperson to the best of [his] ability.”

(Doc. No. 50-5, Jaskiewicz Decl. ¶ 7.) He also attests that, through the date of his termination, he

continued to work hard to service existing customers and to bring new customers and projects to

the company. (Id.) He maintains that he brought several potential customers to the company in

2020 and 2021 that either rejected BTR’s bids or never received a bid from BTR, because BTR

decided not to pursue the opportunity. (Id.) Jaskiewicz also backed away from another potential

client, because a different ITG employee had already established a connection with that company.

To his knowledge, the defendants never lost an existing or prospective customer because of

something Jaskiewicz did or did not do. (Id.)

Jaskiewicz testified that his quarterly commission payments were typically no less than

$10,000. (Doc. No. 36-1, Jaskiewicz Dep. 199–200.) Because his commission was 1% of sales, a

$10,000 commission equates to $1,000,000 invoiced to customers of BTR during the relevant

period. (See Doc. No. 36-1, Jaskiewicz Dep. 60, 83–84.) His commission check for the third

quarter of 2021—the quarter in which he was terminated—was $5,585.50. This means that, during

the quarter that he was terminated, BTR/ITG invoiced $558,550 from sales made by Mr.

Jaskiewicz.

It is undisputed, for purposes of the defendants’ Motion for Summary Judgment, that

Jaskiewicz did not cause the defendants to lose any money, aside from the payment of his salary

and expenses. (Doc. No. 36-4, Killets Dep. 58, 63.)

B. The Oaktree Transaction

Beginning in December 2021, less than twelve months after Jaskiewicz’s termination, ITG

entered into a series of agreements that ITG characterizes as ultimately resulting in the sale of a

67.4% equity interest in ITG Parent, LLC (“ITG Parent”), a newly formed parent of ITG, to an

entity owned by Oaktree Capital Management, L.P. (“Oaktree”) (the “Oaktree Transaction”). The

parties dispute whether this transaction was a “Liquidity Event” as that term is defined by the SPA.

As best the court can ascertain, the undisputed facts regarding this transaction are as follows.

First, ITG Purchaser, LLC (“ITG Purchaser”) was formed on September 8, 2021. (See Doc.

No. 45, Amended and Restated Limited Liability Company Agreement of ITG Purchaser, LLC, at

2.) As of December 2021, ITG Parent was the sole member of ITG Purchaser. (Id. at 3.) ITG Parent

was apparently formed for this purpose.

On December 29, 2021, the ten individuals owning all of the equity of ITG (the

“Contributing Holders”) contributed that equity to ITG Parent pursuant to the terms of a

Contribution Agreement (Doc. No. 43). The ten Contributing Holders were: Michael Brooks, Peter

Giacalone, Christopher Perkins, Michael Lind, Troy McClendon, Chris Cowart, Christy Adkins,

Guilherme Elias, Tracey Giacalone, and Jerry Taylor. In exchange for their equity in ITG, the

Contributing Holders received: (1) Class A, Class B, and Class C Units of ITG Parent (the “Parent

Units”) and (2) rights to potential payment in the future under a separately-executed side letter.4

Thus, under the Contribution Agreement, there was an exchange of equity, but not cash, between

two related entities—ITG and ITG Parent. Immediately following the receipt of ITG’s equity, ITG

Parent transferred that equity to ITG Purchaser, which, as set forth above, was already wholly

owned by ITG Parent. (See Doc. No. 41, Unit Purchase Agreement 15 (“Prior to the Closing Date,

. . . each Seller shall contribute to Parent all of such Seller’s right title and interest in and to such

Seller’s Units . . . , in exchange for the issuance by Parent to each Seller of a number of Parent

Units having a value equal to the number of Units contributed to Parent by such Seller, as set forth

on Schedule 1.1(a) . . . . Immediately following the contribution by the Sellers of the Units to

Parent, Parent shall contribute to ITG Purchaser each of the Units.”).)

On December 30, 2021, ITG Splitter, L.P. (“ITG Splitter” or “ITG Splitter/Oaktree”), an

entity formed by Oaktree for this purpose, purchased the Class A Parent Units from the

Contributing Holders with cash pursuant to a Unit Purchase Agreement. (See Doc. No. 41, Unit

Purchase Agreement.) The total amount of cash paid to the Contributing Holders in this transaction

was more than $204,800,000, with the Contributing Holder with the largest share alone receiving

4 Two of these individuals, Michael Lind and Christy Adkins, received only Parent Class

A units only. (Doc. No. 50-4, at 1.)

almost $64 million. (See Doc. No. 50-4.) As part of this transaction, the two individuals holding

only Class A units sold all of their interest. (Id.) According to the defendants, the Class A Parent

Units purchased by ITG Splitter represented a 67.4% equity interest in ITG Parent, while eight of

the ten Contributing Holders retained the Class B and Class C Parent Units, representing 32.6% of

the equity of ITG Parent. (See Doc. No. 40, at 9–12.) In other words, according to the defendants,

the Oaktree Transaction resulted in the sale of 67.4% of the equity of ITG Parent, which is the sole

member of ITG Purchaser, which in turn, is the sole member of ITG. The eight individuals

retaining 32.3% equity in ITG Parent in the form of the Class B and Class C Parent Units were

Michael Brooks, Peter Giacalone, Christopher Perkins, Troy McClendon, Chris Cowart,

Guilherme Elias, Tracey Giacalone, and Jerry Taylor (the “ITG Continuing Equity Holders”). (See

Doc. No. 40, at 9.) The ITG Continuing Equity Holders collectively retained their equity through

ITG Management Holdings, LLC, which was apparently created for that purpose.

The plaintiff purports to dispute in part the above statements. While he agrees that, “[a]s a

result of the Oaktree Transaction, Oaktree, through ITG Splitter, LLC was transferred 67.4% of

the ownership ‘units’ of ITG Parent,” he disputes that this 67.4% of the ownership units is

equivalent to 67.4% of the value of ITG. He contends that ITG Splitter/Oaktree “received 100%

of the Class A units, which are more valuable than the other classes of ownership units for several

reasons, including: (a) the Class A Units are entitled to profit distributions in the amount of $160

Million; and (b) in the event of a sale, Class B and C Units get no sales proceeds until the capital

investment of the Oaktree (the Class A Units) is repaid.” (Doc. No. 52, Pl.’s Resp. to Defs.’

Statement of Undisp. Material Facts (“SUMF”) ¶ 75 (citing, without a pinpoint citation, Doc. No.

50-3, the eighty-two page ITG Parent Operating Agreement).) The plaintiff does reference the

“Project Islander” Schedule 1.1(a) (Doc. No. 50-4), which he claims shows that “the value of the

Class A Units and the ownership units held by persons who were not members of ITG as of the

‘Effective Date’ is not less than 78% of the total value of the ownership units.” (Doc. No. 52, Pl.’s

Resp. to SUMF ¶¶ 75, 81–82.)

The plaintiff does not explain in his Response to the defendants’ Statement of Undisputed

Material Facts how he reaches that figure. In his Response in opposition to the Motion for

Summary Judgment, he asserts in a footnote that

[a]ccording to the Second Amended Operating Agreement of ITG (the last

operating agreement before the Oaktree Transaction that was provided by

Defendants) the members of ITG were Michael Brooks, Peter Giacalone,

Christopher Perkins and Christopher Cowart.5 The combined “retained value” of

the equity retained by these persons is $63,584,157.86. The total value of the

remaining equity, according to the chart, is $293,319,522.42.

(Doc. No. 50, at 4 n.3. (citing Doc. No. 50-4).) He does not do the math, or even refer to it, but the

78% figure to which he refers appears to be based on the fact that the $63,584,157.96 retained by

the four referenced individuals represents 22% of the total $293,319,522.42. Later in his Response,

he asserts, nonsensically, that

ten of the persons listed on the “Project Islander Schedule 1.1(a)” Chart were not

members of ITG “as of the Effective Date” of the SPA, August 31, 2019. When the

“retained value” of these ten members is removed, the total value transferred to

non-members of ITG (as of August 31, 2019) is 78% of the total value.6

(See Doc. No. 50, at 15.) He also points out that the cash proceeds to the seller at closing, identified

on Schedule 1.1(a) as $215,819,422.22, represents approximately 74 % of the total value of the

company, based on the “Retained Contribution Value” of the company, $77,500,000, also reflected

5 The plaintiff has not provided evidentiary support for this statement, and neither party

filed a copy of the Second Amended Operating Agreement of ITG. Even if the court accepts it as

true, however, it is not material.

6 The court presumes that the plaintiff intended to state that six of the ten persons listed on

the schedule were not members as of August 31, 2019, as he has already acknowledged that four

of them were members as of that date. The plaintiff, again, does not provide proof of that assertion,

but the court finds it irrelevant.

on Schedule 1.1(a). (See id. (“Although this number is not determinative, . . . the value of the Units

transferred to Oaktree is 74% of the total value of the company.”).)

In their Response to the plaintiff’s Statement of Disputed Material Facts, the defendants

point out that the plaintiff does not adequately explain how he arrived at the 78% figure; they also

assert that the actual cash to seller at closing was $204,804,287.68, rather than $215,819,422.22

initially projected. (See Doc. No. 40, at 8.)7 In addressing the central premise of the plaintiff’s

assertion, which is that the percentage of “units” is not necessarily equivalent to the percentage of

the overall value of the company, the defendants assert that

the “value” of the units of ITG Parent are the amount of capital such units represent,

and Schedule A to ITG Parent’s Amended and Restated Operating Agreement

shows that: (1) ITG Splitter, L.P.’s (or Oaktree’s) contributed capital reflects a

67.4% ownership interest, subject to future dilution down to 50.4%, and (2) ITG

Management Holdings, LLC’s contributed capital reflects a 32.6% ownership

interest.

(Doc. No. 60, Defs.’ Resp. to Pl.’s Statement of Disputed Material Facts (“SDMF”) ¶ 3 (citing

Doc. No. 40, at 10).)

It is undisputed that the Oaktree Transaction brought in an equity partner (Oaktree) but did

not change the actual nature of BTR’s or ITG’s services. Following the Transaction, the officers

of BTR and ITG remained the same, with, for example, Mike Brooks still serving as CEO of both

ITG and BTR, Chris Perkins remaining as ITG’s President, and Kevin Killets remaining as BTR’s

COO. Oaktree did not place anyone into officer or employee positions at ITG or BTR.

7 The final Purchase Price reflected on the Project Islander Final Closing Statement

incorporates a number of adjustments to the figures estimated on the Preliminary Closing

Statement, including Cash, Closing Indebtedness, Working Capital Underage, and Transaction

Expenses. (Doc. No. 40, at 8.) It apparently did not affect the cash allocated to the Equity Holders

as reflected on the Closing Distribution (Schedule 1.1(a)). (See Doc. No. 40, Unit Purchase

Agreement § 2.1(d).)

C. This Lawsuit and the Pending Motions

Jaskiewicz filed the Complaint initiating this lawsuit on December 9, 2021, before the

Oaktree Transaction closed. Count One seeks declaratory relief against ITG, pursuant to 28 U.S.C.

§ 2201, based on anticipatory breach of the SPA. The plaintiff asserts that he was terminated

without cause, as that term is defined by the SPA, and therefore entitled to “profit from a

Liquidating Event that occurs no later than one year from the date of his termination.” (Doc. No.

1 ¶ 41.) He claims that ITG “repudiated the SPA” by “unequivocally announcing that it did not

intend to perform its primary obligation to Mr. Jaskiewicz,” apparently based on its position that

he was terminated for cause. (Id. ¶ 42; see also id. ¶ 37.) Jaskiewicz claims entitlement to a

declaration that he was terminated without cause and entitled to profit from any Liquidating Event

that occurred within a year of his termination. (Id. ¶ 43.)

Count Two of the Complaint seeks damages against both ITG and BTR for breach of

contract arising from their purported failure to pay Jaskiewicz his final salary payment and third-

quarter commission payment for 2021. (Doc. No. 1 ¶¶ 45–53.) It is now undisputed that the

defendants have paid the plaintiff all salary and commission earned through the third quarter of

2021 and that this claim has been rendered moot. It will be dismissed on that basis without further

discussion or analysis.

Count Three of the Complaint seeks a declaratory judgment that BTR is required to pay

Jaskiewicz a one percent commission on “revenues from all sales made by Plaintiff while he was

an employee of BTR,” “for as long as those sales continue to generate revenue.” (Doc. No. 1 ¶¶ 55,

56.)

The plaintiff’s Motion for Judgment on the Pleadings (Doc. No. 21) seeks judgment as a

matter of law on Count Three, in the form of a declaration that Jaskiewicz’s entitlement to

commission payments did not terminate with his employment and that he is instead entitled, under

the terms of the agreement embodied in his Employment Letter, to be paid commission on sales

made by him for as long as those sales continue to generate revenue. The defendants oppose the

Motion for Judgment on the Pleadings. (See Doc. No. 26.)

In their Motion for Summary Judgment and supporting Memorandum (Doc. Nos. 36, 37),

the defendants assert with respect to Count Three that they, rather than the plaintiff, are entitled to

judgment as a matter of law as to the interpretation of the plaintiff’s Employment Letter, and that

Jaskiewicz’s entitlement to commissions terminated with his employment. The defendants argue,

with respect to Count One, that Jaskiewicz was terminated for cause and that, in any event, the

Oaktree Transaction was not a Liquidating Event, and no other such qualifying event occurred

within a year of the plaintiff’s termination, thus mooting any claim for a declaration regarding his

entitlement to payment under the SPA.8

In support of their Motion for Summary Judgment, the defendants filed a Statement of

Undisputed Material Facts (Doc. No. 38) and evidentiary material to support their factual

assertions, much of it under seal. The plaintiff filed a Response in opposition to the Motion for

Summary Judgment, Response to the defendants’ Statement of Undisputed Material Facts, and his

own Statement of Disputed Material Facts. (Doc. Nos. 50, 52.) The defendant has filed a Reply

and a Response to the plaintiffs’ Statement of Disputed Material Facts. (Doc. Nos. 59, 60.)

II. STANDARD OF REVIEW

A. Rule 56

Summary judgment is appropriate where there is no genuine issue as to any material fact

8 The plaintiff, inexplicably, did not seek to amend his pleading to seek a declaration to the

effect that the Oaktree Transaction was a Liquidating Event under the SPA or that ITG breached

the SPA by failing to pay him the Performance Units as required by the SPA. The defendants have

not raised this issue, and the parties appear to presume that the pleading has been amended by

implication to incorporate a breach of contract claim based on the Oaktree Transaction.

and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). “By its very terms,

this standard provides that the mere existence of some alleged factual dispute between the parties

will not defeat an otherwise properly supported motion for summary judgment; the requirement is

that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

247–48 (1986). In other words, even if genuine, a factual dispute that is irrelevant or unnecessary

under applicable law is of no value in defeating a motion for summary judgment. On the other

hand, “summary judgment will not lie if the dispute about a material fact is ‘genuine.’” Id.

“[A] fact is ‘material’ within the meaning of Rule 56(a) if the dispute over it might affect

the outcome of the lawsuit under the governing law.” O’Donnell v. City of Cleveland, 838 F.3d

718, 725 (6th Cir. 2016) (citing Anderson, 477 U.S. at 248). A dispute is “genuine” “if the evidence

is such that a reasonable jury could return a verdict for the non-moving party.” Peeples v. City of

Detroit, 891 F.3d 622, 630 (6th Cir. 2018).

The party bringing the summary judgment motion has the initial burden of identifying

portions of the record—including, inter alia, depositions, documents, affidavits, or declarations—

that it believes demonstrate the absence of a genuine dispute over material facts. Pittman v.

Experian Info. Sols., Inc., 901 F.3d 619, 627–28 (6th Cir. 2018); Fed. R. Civ. P. 56(c)(1)(A). The

non-moving party must set forth specific facts showing that there is a genuine issue for trial.

Pittman, 901 F.3d at 628. The court must view the facts and draw all reasonable inferences in favor

of the non-moving party. Id. Credibility judgments and weighing of evidence are improper.

Hostettler v. Coll. of Wooster, 895 F.3d 844, 852 (6th Cir. 2018).

B. Rule 12(c)

Rule 12(c) provides: “After the pleadings are closed—but early enough not to delay trial—

a party may move for judgment on the pleadings.” A motion for judgment on the pleadings

pursuant to Rule 12(c) is subject to the same standards of review as a Rule 12(b)(6) motion to

dismiss for failure to state a claim upon which relief can be granted. Grindstaff v. Green, 133 F.3d

416, 421 (6th Cir. 1998). “For purposes of a Rule 12(c) motion, all well-pleaded material

allegations must be taken as true, and the motion may be granted only if the moving party is

nevertheless clearly entitled to judgment.” Stafford v. Jewelers Mut. Ins. Co., 554 F. App’x 360,

370 (6th Cir. 2014) (internal citation and quotations omitted). Moreover, “[a] Rule 12(c) motion

is appropriately granted when no material issue of fact exists and the party making the motion is

entitled to judgment as a matter of law.” Id.

III. DISCUSSION

All of the claims remaining at issue in this case are premised upon breach of contract. The

questions posed by the parties’ motions are: (1) whether Jaskiewicz was terminated without

“cause,” as that term is defined by the SPA; (2) if so, whether the Oaktree Transaction qualifies as

a Liquidity Event; and (3) whether Jaskiewicz is entitled to commissions on the revenue “from all

sales made by Plaintiff while he was an employee of BTR for so long as those sales continue to

generate revenue.” (Doc. No. 1 ¶¶ 56, 58.) Each of these questions requires the interpretation

and/or construction of the relevant contracts: the SPA and the plaintiff’s Employment Letter.

A. Legal Standards

The SPA expressly provides that it is to be governed by Tennessee law. (Doc. No. 36-1, at

36, SPA ¶ 12(d).) The Employment Letter does not specify which state’s laws govern its

construction, but both parties appear to presume that Tennessee law applies.

The “interpretation” of an agreement, or a term used in an agreement, “involves

ascertaining the meaning of contractual words.” 11 Williston on Contracts § 30:1 (4th ed.)

(citations omitted). “Construction,” on the other hand, “involves deciding their legal effect.” Id.

“In ‘resolving disputes concerning contract interpretation, [the court’s] task is to ascertain the

intention of the parties based upon the usual, natural, and ordinary meaning of the contractual

language.’” Planters Gin Co. v. Fed. Compress & Warehouse Co., 78 S.W.3d 885, 889–90 (Tenn.

2002) (quoting Guiliano v. Cleo, Inc., 995 S.W.2d 88, 95 (Tenn. 1999)).

The first order of business in interpreting a contract is “to determine whether the language

of the contract is ambiguous.” Id. at 890. “If clear and unambiguous, the literal meaning of the

language controls the outcome of contract disputes,” and “[a] strained construction may not be

placed on the language used to find ambiguity where none exists.” Id. at 890, 891 (citations

omitted). “A contract is ambiguous only when it is of uncertain meaning and may fairly be

understood in more ways than one.” Id. (quoting Empress Health & Beauty Spa, Inc. v. Turner,

503 S.W.2d 188, 190–91 (Tenn. 1973)). “This determination is made on an objective basis, not

based on the parties’ subjective perceptions.” 17A C.J.S. Contracts § 404. See also 11 Williston

on Contracts § 30:6 (“[I]t is not the parties’ subjective intent but rather their objective intent,

embodied in the language that they used to memorialize their agreement, that is relevant [to the

determination of whether a contract is ambiguous].”).

Only if the contract is ambiguous is the court called upon to “appl[y] established rules of

construction to determine the parties’ intent.” Id. If ambiguity remains after that effort, the legal

meaning of the contract “becomes a question of fact appropriate for a jury.” Id. (internal quotation

marks and citation omitted). Otherwise, the determination of the parties’ intention “is generally

treated as a question of law because the words of the contract are definite and undisputed, and in

deciding the legal effect of the words, there is no genuine factual issue left for a jury to decide.”

Planters Gin Co., 78 S.W.3d at 890.

B. Whether Jaskiewicz Was Terminated for Cause

As set forth above, the SPA defines “cause” as: