                                                       NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT
                           _____________

                              No. 12-2549
                             _____________

              NATIONWIDE INSURANCE INDEPENDENT
               CONTRACTORS ASSOCIATION, INC, on
               behalf of its Pennsylvania members who have
                contracts with Nationwide Mutual Insurance
                    Company; DAVID A. GARDNER,
                                                 Appellants

                                    v.

            NATIONWIDE MUTUAL INSURANCE COMPANY

                            ______________

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN
                    DISTRICT OF PENNSYLVANIA
                  (D.C. Civ. Action No. 2-11-cv-03085)
             District Judge: Honorable Mary A. McLaughlin
                             ______________

                Submitted Under Third Circuit LAR 34.1(a)
                       (Submitted: March 22, 2013)
                            ______________

 Before: McKEE, Chief Judge, SMITH, and GREENAWAY, JR., Circuit Judges.

                       (Opinion Filed: May 3, 2013)

                            ______________

                               OPINION
                            ______________
GREENAWAY, JR., Circuit Judge.

       Appellants David Gardner (“Gardner”) and Nationwide Independent Insurance

Agents, Inc. (“NIICA”) (collectively “Appellants”) brought a complaint against Appellee

Nationwide Mutual Insurance Company (“Nationwide”) seeking declaratory relief.1 The

District Court granted Appellee’s motion to dismiss the complaint. This appeal followed.

For the reasons below, we will affirm.

                                 I.       BACKGROUND

       NIICA is a voluntary-membership association of insurance agents. Nationwide

has no contractual relationship with NIICA and has never acknowledged NIICA as a

representative of its insurance agents.

       Gardner is an insurance agent in Pennsylvania and has operated under an agent

agreement with Nationwide since 1991 (“agent agreement”). Under the agent agreement,

agents have the option of accumulating deferred compensation incentive credits

(“DCIC”) or enrolling in an alternative compensation program with higher levels of

compensation and benefits. Additionally, the agent agreement contains an exclusive

representation provision which permits Gardner to place policies of insurance with

companies other than Nationwide with Nationwide’s consent. Historically, Nationwide

has allowed agents to place policies with a network of other insurance carriers that are

Nationwide subsidiaries (“Network”) in situations where Nationwide does not offer the


1
 NIICA brought the original complaint on its own. The District Court dismissed that
complaint upon Appellee’s motion. The complaint under consideration here is the
amended complaint.
                                             2
insurance product the client requires.

       Beginning in 2004, Nationwide implemented several changes to its arrangement

with agents. These changes are the subject of this litigation. In 2006, Nationwide

introduced the “On Your Side Promise” program, which was designed to increase

Nationwide’s supervisory controls over its agents’ activities. Gardner declined to sign

this agreement and now claims he was denied a $10,000 bonus for refusing to enter into

the agreement. Later, in 2010, Nationwide implemented the 2010 Agent Choice

Addendum (“2010 Addendum”). At the time, agents who signed this addendum waived

their right to accrue additional DCIC, although they would retain the DCIC they had

already accrued. Gardner did not sign the 2010 Addendum either. Appellants allege that,

in order to penalize Gardner for his refusal to give up his DCIC by signing the 2010

Addendum, Nationwide has denied Gardner access to the Network, thus undermining his

ability to place policies that he had previously been able to place.

       Appellants also allege that Nationwide has asserted exclusive ownership over

policyholder information, thus “depriving Mr. Gardner of the financial value of his

business.” (Appellant’s Br. 7.) Specifically, Appellants take issue with three Nationwide

policies: (1) a provision in the 2010 Addendum that gives Nationwide exclusive and

permanent ownership and control over policyholder information; (2) a statement in

Nationwide’s 2009 Agency Administration Handbook that an agent’s failure to turn over

policyholder information, upon termination of a contract with Nationwide, constitutes

grounds for forfeiture of agent’s post-termination benefits; and (3) Nationwide’s assertion

                                              3
that its policyholder information is a trade secret.2 Appellants claim that these assertions

harm Gardner because his ownership stake in policyholder information is vital to his

book of business and his ability to obtain independent financing in the future.

       In their complaint, Appellants seek declaratory relief as to five claims.

Specifically, Appellants request orders that: (1) Nationwide’s discrimination against

agents who refuse to relinquish their DCIC, by signing the 2010 Addendum, is a breach

of the agent agreement; (2) Nationwide’s practice of denying Gardner and other agents

who declined to sign the “On Your Side Promise” agreement access to the Network is a

breach of the agent agreement; (3) Nationwide’s assertion of exclusive ownership over

policyholder information is a breach of the agent agreement;3 (4) Nationwide’s assertion

that policyholder information is Nationwide’s trade secret is not supportable under trade

secret law; and (5) Nationwide’s Agency Administrative Handbook, which contains

statements that the agents are bound by Nationwide’s assertion of exclusive ownership of

policyholder information, is not part of the agent agreements.

       Appellee sought to dismiss all of the claims, arguing that Gardner lacked standing

and had failed to state a claim. The District Court granted the motion. The District Court

also held that NIICA lacked associational standing as to all claims because, since Gardner

lacked standing and failed to state a claim, NIICA had failed to identify at least one


2
 Appellants do not specify the origin of the trade secret assertion except to allege that
Nationwide is making such assertions “in litigations and elsewhere.” (Compl. ¶ 73.)
3
 Appellants seem to allege that these first three practices are a breach of the agent
agreement under the implied covenant of good faith and fair dealing.
                                              4
NIICA member that had a viable claim. Appellants filed a timely appeal.

               II.     JURISDICTION AND STANDARD OF REVIEW

       The District Court had jurisdiction pursuant to 28 U.S.C. § 1332. We have

appellate jurisdiction pursuant to 28 U.S.C. § 1291.

       We exercise plenary review over the District Court’s grant of a motion to dismiss.

Santiago v. Warminster Twp., 629 F.3d 121, 128 (3d Cir. 2010). “[I]n deciding a motion

to dismiss, all well-pleaded allegations of the complaint must be taken as true and

interpreted in the light most favorable to the [Appellant], and all inferences must be

drawn in [his favor].” McTernan v. City of York, 577 F.3d 521, 526 (3d Cir. 2009). To

withstand a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient factual

matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).

                                     III.    ANALYSIS

A. Standing

       1.     Challenges to the On Your Side Promise and 2010 Addendum

       We agree with the District Court that Gardner lacks standing to challenge either

the On Your Side Promise program or the 2010 Addendum. In order to have standing, a

complaining plaintiff must be able to show that he has suffered an “injury in fact” which

is “concrete and particularized . . . actual and imminent, [and] not conjectural or

hypothetical.” Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). We have further

specified that an injury is only “concrete” if it is “distinct and palpable, as opposed to

                                               5
merely abstract.” N.J. Physicians, Inc. v. President of the United States, 653 F.3d 234,

238 (3d Cir. 2011).

       As an initial matter, because Gardner has refused to sign the two agreements, he is

not a party to either of these contracts; nor has he cited any authority which would permit

a non-party or non-beneficiary to challenge the existence or implementation of a contract.

See Culhane v. Aurora Loan Serv., 708 F.3d 282 (1st Cir. 2013) (noting that generally a

“nonparty who does not benefit from a contract generally lacks standing to assert rights

under that contract”).

       Appellants have also presented no facts demonstrating that Gardner has suffered

an injury in fact resulting from the existence or implementation of these contracts or from

denial of access to the Network. As the District Court properly observed, “[a]t most,

[Gardner] seem[s] to object to those agents who participate in the agreements receiving

benefits which are not available to those who do not participate.” Nationwide Ins. Indep.

Contractors Ass’n, Inc. v. Nationwide Mut. Ins. Co., No. 11-cv-3085, 2012 WL 1524381,

*3 (E.D. Pa. May 1, 2012).

       Moreover, regarding access to the Network, Gardner has not shown that he has

been injured in the slightest. “Gardner does not allege that he has sought to use the

network, or that he has been denied the ability to do so. He likewise does not allege any

facts to support his claim that network access is tied to relinquishment of retirement

benefits.” Id.

       Given these deficiencies, we cannot find that Gardner has stated an injury in fact,

                                             6
and therefore, he lacks standing to challenge these agreements per se.4

       2.     Nationwide’s Claim of Exclusive Ownership and Control over Policyholder
              Information

       Appellants’ last three claims, relating to Nationwide’s claim of exclusive

ownership and control over policyholder information, must also fail because Gardner has

failed to specify an injury in fact and therefore lacks standing to bring these claims.

Appellants allege that Nationwide’s practice of asserting exclusive ownership over

policyholder information has damaged Gardner because “if [he] need[s] to secure

financing or show credit worthiness, [policyholder information] is the asset that [he] ha[s]

to rely on.” (Compl. ¶ 71.) Gardner has made no allegations that he has immediate plans

to terminate his agreement with Nationwide and use the policyholder information at his

subsequent place of business. Nor does Gardner allege that Nationwide has taken

affirmative steps to deny him access to the policyholder information. Gardner does not

allege that he has sought and been denied financing. Rather, Gardner’s claim is premised

on mere speculation that he may wish to obtain financing and believes he will be unable

to do so at some undetermined point in the future. We simply cannot say that an injury

premised on such multiple contingencies is sufficiently concrete. “[S]ome day intentions

— without any description of concrete plans, or indeed even any specification of when

the some day will be — do not support a finding of the actual or imminent injury” that is


4
  Appellants also argue that their claims should be adjudicated because the claims are ripe
under the three-pronged standard established in Traveler Inc. Co. v. Obusek, 72 F.3d
1148 (3d Cir. 1995). Ripeness is not a substitute for injury in fact. No adjudication is
required here.
                                              7
required to establish standing. Summers, 555 U.S. at 496 (internal quotation marks

omitted).5

       Therefore, we hold that Gardner lacks standing as to the last three claims as well.

B. Failure to State a Claim

       We also consider Appellants’ challenge to the 2010 Addendum and the On Your

Side Promise to the extent that it alleges a breach of contract.6 Specifically, Gardner

alleges that the 2010 Addendum and On Your Side Promise are breaches of the implied

covenant of good faith and fair dealing of his agent agreement because they “frustrate the

primary objectives of the Agent’s Agreement, which include the best possible service to

the customer and maintaining a growing agency,” prevent him from receiving a bonus to

which he is entitled, and interfere with his “right to exercise independent judgment as to .

. . [the] manner of soliciting insurance, service policyholders and otherwise carrying out

provisions of the Agreement.” (Appellant’s Br. 18, 23 (citing App. 90).) Appellants’



5
  Gardner brings to our attention several decisions from other federal courts, which all
held that Nationwide did not have a property or other interest in the policyholder
information. See Nationwide Mut. Ins. Co. v. Mortensen, 606 F.3d 22 (2d Cir. 2010)
(collecting cases from a number of courts that have rejected the argument that the agent’s
policyholder files themselves qualify as trade secrets); Nationwide Mut. Ins. Co. v.
Fleming, No. 99-1417 (W.D. Pa. Oct. 2, 2001) (finding that language in the agent
agreement did not bestow on Nationwide an ownership right in the policyholder
information). Both Mortensen and Fleming suits are distinguishable because each arose
following an injury in fact. See Mortensen, 606 F.3d at 26-27 (former Nationwide agents
allegedly shared policyholder information with Nationwide’s competitors); Fleming, No.
99-1417, slip op. at 1-3 (same).
6
 As Gardner is a party to the agent agreement, he has standing to challenge an alleged
breach of it.
                                             8
arguments fail because they do not account for the requirement under Pennsylvania law

that a duty of good faith and fair dealing in a breach of contract claim must always be

grounded in a specific provision of a contract. See Northview Motors, Inc. v. Chrysler

Motors Corp., 227 F.3d 78, 91 (3d Cir. 2000) (noting that a claim for breach of the duty

of good faith and fair dealing must not be “divorced from the specific clauses of the

contract”); see also Burton v. Teleflex, Inc., 707 F.3d 417, 433 (3d Cir. 2013) (holding

that under Pennsylvania law, a claim for breach of the implied covenant of good faith and

fair dealing is subsumed in a breach of contract claim).

       Appellants have presented no facts demonstrating a breach of Gardner’s agent

agreement. Appellants cannot point to any provision in the agent agreement which

entitles Gardner to a bonus payment; nor can they point to any provision which is

violated by Nationwide’s mere declaration of policyholder information ownership.7

Moreover, Gardner’s agent agreement specifically requires Gardner to obtain “the written

consent” of Nationwide before placing policies with carriers within the Network. As

such, Appellants appear to complain merely that Nationwide is acting in accordance with

the contract by denying Gardner access to the Network, and as we have previously held,

“the good faith duty . . . cannot be used to override an express contractual term.”

Northview Motors, 227 F.3d at 91.


7
 We note that Appellants have presented no facts demonstrating that Nationwide has
acted upon this declaration of ownership. Appellants do not allege that Nationwide has
prevented Gardner from accessing the policyholder information, nor do they allege that
Nationwide has sought damages for Gardner’s use of the policyholder information.

                                             9
       As Appellants are unable to specify a contract provision being violated, we have

no authority to review Nationwide’s perceived lack of generosity outside of a contractual

obligation. We therefore agree with the District Court that, to the extent Appellants

challenge the denial of bonuses, access to the Network, and Nationwide’s claim of

ownership over policyholder information as violations of Gardner’s agent agreement,

they have failed to state a claim.

C. Associational Standing

       Lastly, we agree with the District Court’s finding that NIICA lacks associational

standing to bring this suit. An association is permitted to bring a suit on behalf of its

members when “(a) its members would otherwise have standing to sue in their own right;

(b) the interests it seeks to protect are germane to the organization’s purpose; and (c)

neither the claim asserted nor the relief requested requires the participation of individual

members in the lawsuit.” Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 342

(1977). In order to satisfy the first Hunt prong, associations must present “at least one

identified member” who has suffered a specified harm. Summers, 555 U.S. at 498.

Gardner was the only NIICA member identified, and because we hold that Gardner has

failed to allege any facts which give rise to standing or which allow him to state a viable

claim, NIICA’s claim to associational standing fails.8


8
 The District Court also held that NIICA had failed to satisfy the second Hunt prong by
addressing “the potential conflict of interest among its members based on this claim of
discrimination.” Nationwide, 2012 WL 1524381, at *3. In response, NIICA claims that
“none of its members would be harmed by the declarations sought . . . . Other Nationwide
agents do not benefit in any way from the practices which are damaging [Gardner and
                                              10
                                IV.    CONCLUSION

      For the foregoing reasons, we affirm the District Court’s grant of Appellee’s

motion to dismiss.




similarly-situated agents] because Nationwide agents do not compete among
themselves.” (Appellant’s Br. 9-10.) Because we find that NIICA has failed to meet the
first Hunt prong, we need not resolve this issue.
                                           11
