DATE FILED: June 2, 2023 1:59 PM

DISTRICT COURT, CITY AND FILING ID: 5E505A23BD840

COUNTY OF DENVER, COLORADO CASE NUMBER: 2023CV31608
1437 Bannock Street
Denver, Colorado 80202
Telephone: (303) 606-2300
Plaintiff: DAVID PINKERT,

v.

Defendant: FRIDAY HEALTH PLANS

MANAGEMENT SERVICES COMPANY,
INC. ▲COURT USE ONLY▲
Attorneys for Plaintiff:
Michael R. McCurdy, #14212 Case Number:
Jason R. Robinson, #33716
FAIRFIELD AND WOODS, P.C. Division:
1801 California Street, Suite 2600
Denver, Colorado 80202
Telephone: (303) 830-2400
Facsimile: (303) 830-1033
E-Mail: mmccurdy@fwlaw.com;
jrobinson@fwlaw.com
COMPLAINT

Plaintiff David Pinkert (“Plaintiff”), through his counsel, Fairfield and Woods, P.C.,
submits the following Complaint and alleges as follows:

THE PARTIES

1. Plaintiff David Pinkert is an individual and resident of the State of Colorado,

residing at 1188 South Sherman Street, Denver, Colorado 80210.

2. Defendant Friday Health Plans Management Services Company, Inc. is a Colorado

corporation with a principal office street address and mailing address of 1777 South Harrison
Street, Suite 1100, Denver, Colorado 80210.

JURISDICTION AND VENUE

3. By virtue of the facts alleged herein, this Court has personal and subject matter
jurisdiction over the parties and claims to this Complaint.
 4. Venue is proper in this district pursuant to Rule 98 of the Colorado Rules of Civil
Procedure.

GENERAL ALLEGATIONS

5. Defendant Friday Health Plans Management Services Company, Inc. (“Friday

Health Plans”) operates a health insurance company that is targeted towards individuals who
purchase their own health insurance and who do not get health insurance through their job. Friday
Health Plans offers health insurance plans in Colorado, Nevada, North Carolina, Georgia, and
Oklahoma.

6. Plaintiff David Pinkert entered into an Employment Agreement with Melody

Health Insurance, Inc. on or about November 1, 2015. Mr. Pinkert’s employment was
subsequently transferred to Friday Health Plans.

The Employment Agreement

7. Pursuant to the Employment Agreement, Mr. Pinkert was hired to serve as the Chief
Operating Officer and Secretary. Employment Agreement, § 1(a), at 1.

8. In exchange for his service, Mr. Pinkert was to receive an annual base salary of
$240,000 per year through December 31, 2016, which base salary would increase to $300,000 per
year beginning January 1, 2017. Employment Agreement, § 2(a), at 2. In addition to his annual
salary, Mr. Pinkert was eligible to earn an annual bonus, paid leave, as well as certain fringe
benefits. Id., §§ 2(b), 3, 4, at 2.

9. The term of the Employment Agreement was for an initial period of three years,
which term would automatically renew for one year periods unless earlier terminated pursuant to
the terms of the Employment Agreement. Employment Agreement, § 5(a), at 3.

10. The Employment Agreement provided that Mr. Pinkert’s employment with the
company could be terminated in certain enumerated ways: (i) Termination by Consent; (ii)
Termination by the Executive; (iii) Termination by the Company for Cause; (iv) Termination by
the Company without Cause; and (v) Termination by Death or Disability. Employment
Agreement, § 5, at 3–5.

11. As relevant to this lawsuit, Section 5(e) of the Employment Agreement defined
“Termination by Company without Cause” as follows:

The Company may terminate the Executive’s employment without Cause at any
time on 60 days’ advance written notice to Executive, with the Company’s only
obligations being the payment of accrued salary, accrued benefits and accrued,
unused vacation compensation earned as of the date of termination and the
applicable Restrictive Covenant Benefits. For the avoidance of doubt, non-renewal

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 of this Agreement by the Company pursuant to Section 5(a) shall be [sic] constitute
a termination without Cause.

Employment Agreement, § 5(e), at 5.

12. Section 6(f) of the Employment Covenant set forth the “Restrictive Covenant
Benefits” to which Mr. Pinkert is entitled in the event his employment with the company was
terminated without cause pursuant to Section 5(e) of the Employment Agreement:

If Executive’s employment is terminated by Executive for Good Reason pursuant

to Section 5(c) or the Company terminates Executive’s employment without Cause,
as set forth in Section 5(e), the Company shall provide Executive the following
compensation and benefits (the “Restrictive Covenant Benefits”): (i) an amount
equal to the Executive’s then effective Annual Base Salary throughout the
Restricted Period, (ii) if the Executive elects to receive continued healthcare
coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of
1985, as amended, or any successor statute (“COBRA”), a monthly amount,
payable either in the form of a credit against the cost of COBRA continuation
coverage or a cash payment (in the sole discretion of the Company) equal to the
Company’s portion of the premiums for such coverage based on the premium costs
for the month of payment and the portions of such premiums paid by the Company
at the time of Executive’s termination of employment, during the period
commencing with the first month for which Executive is eligible for COBRA
continuation coverage and ending with the month that contains the earliest of (A)
the last day of the Restricted Period, (B) the date Executive is no longer eligible for
COBRA, or (C) the date Executive becomes eligible to receive healthcare coverage
from Executive’s subsequent employment; (iii) the full amount of any bonus
which Executive would have been entitled to receive pursuant to Section 2(b) for
the immediately prior calendar year if such bonus has not been paid at the time of
Executive’s employment termination, and a pro rata portion of any bonus which
Executive would have been entitled to receive for the calendar year in which
Executive’s employment was terminated, based on the number of days during
which Executive was employed by the Company during such calendar year and (iv)
full acceleration of any unvested portion of any equity awards made to Executive
prior to the date of termination of employment pursuant to the Company’s 2015
Executive Incentive Plan, as amended from time to time. The payment of the
amount set forth in clause (i) above shall be payable in installments consistent with
the Company’s payroll procedures in effect from time to time, provided that such
installments shall be no less frequent than monthly. The provision of any
Restrictive Covenant Benefits shall be subject to the provisions of Section 6(g)
hereof.

Employment Agreement, § 6(f), at 9–10.

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 13. In order for Mr. Pinkert to be eligible to receive any of the Restrictive Covenant
Benefits, he was required to execute and not revoke a release of claims as well as remain in
compliance with certain restrictive covenants in the Employment Agreement. Employment
Agreement, § 6(f), at 10.

14. The Employment Agreement specifically provides that it shall bind, and inure to
the benefit of, the company’s successors and assigns. Employment Agreement, § 7, at 11.

15. Pursuant to Section 8 of the Employment Agreement, “[i]n any dispute involving
this Agreement, the prevailing party (or substantially prevailing party) shall be entitled to recover
its reasonable attorneys’ fees and expenses from the non-prevailing party (or substantially non-
prevailing party).” Employment Agreement, § 8, at 12.

16. Mr. Pinkert’s employment transferred from Melody Health Insurance, Inc. to
Friday Health Plans.

Friday Health Plans’ Termination

of Mr. Pinkert Without Cause

17. On or about November 18, 2022, Friday Health Plans informed Mr. Pinkert by letter
that his employment with the company was terminated without cause pursuant to Section 5(e) of
the Employment Agreement (“Notice of Termination”).

18. The Notice of Termination identified Mr. Pinkert’s effective termination date as
January 13, 2023 (the “Termination Date”) and specifically addressed Mr. Pinkert’s entitlement to
receive the Restrictive Covenant Benefits:

Between now and the Termination Date you will continue to receive your
compensation and benefits in accordance with Section 5.e. of the Employment
Agreement and following the Termination Date will be eligible to receive the
Restrictive Covenant Benefits pursuant to the terms of the Employment Agreement.

November 18, 2022 Notice of Termination.

The Separation and Release Agreement

19. On December 5, 2022, pursuant to the Employment Agreement, Mr. Pinkert

executed a Separation and Release Agreement prepared by Friday Health Plans.

20. In the Separation and Release Agreement, Friday Health Plans acknowledged that
it would pay Mr. Pinkert certain benefits that were contingent upon Mr. Pinkert executing a release.

21. Specifically, the Separation and Release Agreement provided that, upon executing
and not revoking the agreement, Mr. Pinkert “shall receive the Restrictive Covenant Benefits

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described in Section 6.f. of the Employment Agreement, subject to and in accordance with the
terms of the Employment Agreement.” Separation and Release Agreement, § 2(b), at 2.

22. Section 10 of the Separation and Release Agreement provides that “[i]n any action
to enforce this Agreement, the prevailing party (or substantially prevailing party) will be entitled
to recover costs, expert witness fees, and attorneys’ fees.” Separation and Release Agreement, §
10, at 5.

Friday Health Plans’ Failure to Pay Mr. Pinkert

the Restrictive Covenant Benefits

23. On January 12, 2023, Friday Health Plans provided Mr. Pinkert a termination letter,
which terminated his employment effective January 13, 2023 and further provided information
regarding benefits and unemployment options.

24. On February 8, 2023, Mr. Pinkert reached out by email to Chelsey Moore at Friday
Health Plans regarding the status of his severance payment, which had not arrived by February 3,
2023 (the date he expected to receive the first check).

25. Notwithstanding Mr. Pinkert’s compliance at all times with his obligations under
the Employment Agreement and Separation and Release Agreement, Friday Health Plans informed
Mr. Pinkert by letter dated February 7, 2023 (“Notice of Non-Payment”) that he would not be
receiving any severance payments under the Separation and Release Agreement:

Pursuant to Section 12 of the Separation Agreement, notice is being provided to

Employee that the Company, as of the date hereof, is discontinuing all severance
payments to which Employee is now, or may in the future become, entitled, due to
liquidity concerns of the Company at this time.

February 7, 2023 Notice of Non-Payment.

26. Although the Notice of Non-Payment was dated February 7, 2023, Mr. Pinkert had
not received it as of the date of his February 8, 2023 email, calling into question the whether the
Notice of Non-Payment was backdated. Indeed, the shipping label on the envelope reveals it was
mailed on February 9, 2023.

27. Contrary to Friday Health Plans’ position, neither the Employment Agreement nor
the Separation and Release Agreement permit Friday Health Plans to terminate the Restrictive
Covenant Benefits “due to liquidity concerns.”

28. Moreover, upon information and belief, the Chief Financial Officer received one or
more severance payments from Friday Health Plans. Such payments call into question the veracity
of Friday Health Plans purported basis for refusing to pay Mr. Pinkert’s Restrictive Covenant
Benefits.

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 Mr. Pinkert’s Demand for Payment

29. On or about February 13, 2023, counsel for Mr. Pinkert sent a letter demanding
payment of all amounts due under the Employment Agreement and Separation and Release
Agreement.

30. Friday Health Plans refused to provide Mr. Pinkert or his counsel the courtesy of a
response to the February 13, 2023 Demand letter.

31. On May 10, 2023, Mr. Pinkert reached out to Beth Bierbower, the current CEO of
Friday Health Plans, regarding his severance. Ms. Bierbower referred Mr. Pinkert to Friday Health
Plans’ legal counsel.

32. Thus, notwithstanding multiple efforts, Friday Health Plans has failed to pay Mr.
Pinkert the Restrictive Covenant Benefits to which he is entitled under the Employment Agreement
and Separation and Release Agreement.

33. All conditions precedent to the enforcement of the Employment Agreement and
Separation and Release Agreement have been satisfied, have occurred, or have been waived.

FIRST CLAIM FOR RELIEF

(Breach of Contract – Employment Agreement and
Separation and Release Agreement)

34. Mr. Pinkert incorporates by reference the allegations contained in the foregoing
paragraphs as if fully set forth herein.

35. The Employment Agreement and Separation and Release Agreement constitute
binding and enforceable contracts between Mr. Pinkert and Friday Health Plans.

36. Friday Health Plans breached the Employment Agreement and Separation and
Release Agreement by, among other things, failing to pay Mr. Pinkert amounts due upon his
separation from the company.

37. Mr. Pinkert fulfilled all of his obligations and duties under the Employment
Agreement and Separation and Release Agreement.

38. As a result of Friday Health Plans’ breaches, Mr. Pinkert has been damaged in an
amount to be determined at trial, plus attorney fees, interest and costs as allowed under Colorado
law.

SECOND CLAIM FOR RELIEF

(Unjust Enrichment)

39. In the alternative to his First Claim for Relief, Mr. Pinkert incorporates by reference
the allegations contained in the foregoing paragraphs as if fully set forth herein.

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 40. Mr. Pinkert conferred a benefit upon Friday Health Plans, which benefit was
accepted and appreciated by it.

41. Mr. Pinkert reasonably expected Friday Health Plans to pay amounts due upon his
separation from the company.

42. The acceptance and retention by Friday Health Plans of the benefit conferred by
Mr. Pinkert would be inequitable under the circumstances unless Friday Health Plans compensates
Mr. Pinkert for the value of the benefit conferred.

43. Friday Health Plans, by retaining the benefit and not compensating Mr. Pinkert, has
been and continues to be unjustly enriched at Mr. Pinkert’s expense. Mr. Pinkert has been
damaged in an amount to be proven at trial.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff David Pinkert, requests judgment in his favor and against
Defendant, Friday Health Plans Management Services Company, Inc., for the following:

A. All present and future damages, pre- and post-judgment interest, attorneys’ fees and
costs as allowed by law and under the Employment Agreement and the Separation and Release
Agreement, and other amounts due; and

B. Such other and further relief as the Court deems just and proper.

Respectfully submitted this 2nd day of June, 2023.

FAIRFIELD & WOODS, P.C.

Original duly signed and on file for review

By: /s/ Jason B. Robinson

Michael R. McCurdy, #14212
Jason B. Robinson, #33716

Attorneys for Plaintiff David Pinkert

Plaintiff’s Address:
1188 South Sherman Street
Denver, CO 80210