Date: 05-08-2012

Case Style: Joseph W. Sullivan v. William F. Harnisch

Case Number: No. 82

Judge: Smith

Court: New York Court of Appeals

Plaintiff's Attorney: Daniel M. Felber, for appellant.

Defendant's Attorney: Y. David Scharf, for respondents.

Description: We held in Murphy v American Home Prods. Corp. (58 NY2d 293 [1983]), and have several times reaffirmed, that New York common law does not recognize a cause of action for the wrongful discharge of an at-will employee. We decline in this case to make an exception to that rule for the compliance officer of a hedge fund.

I

Plaintiff, Joseph Sullivan, was, according to his complaint, a 15% partner in two affiliated firms, defendants Peconic Partners LLC and Peconic Asset Managers LLC (collectively called Peconic, and colloquially referred to as a hedge fund).

He was also, the complaint alleges, Peconic's "Executive Vice President, Treasurer, Secretary, Chief Operating Officer and Chief Compliance Officer." Defendant William Harnisch was the majority owner, Chief Executive Officer and President.

Sullivan was fired after a dispute with Harnisch. The dispute was in part about money: the complaint alleges that the dismissal occurred within hours after a lawyer for Sullivan contacted Peconic's counsel to voice objections to a proposed agreement that would have eliminated Sullivan's ownership interest. The complaint also alleges, however, that there was another motive for the dismissal that is more relevant to this appeal: objections raised by Sullivan, in his capacity as Chief Compliance Officer, to certain sales of stock by Harnisch for his personal account and the accounts of members of his family.

According to the complaint, these stock sales amounted to "front-running" -- selling in anticipation of transactions by the firm's clients -- and enabled Harnisch to take advantage of an opportunity from which the clients were excluded. The complaint alleges that Sullivan "confronted" Harnisch about these improper trades, "voiced objection to them, and insisted that they be reversed or otherwise properly addressed." Harnisch refused, and yelled at Sullivan for raising the subject. Sullivan was fired days later.

Sullivan asserted nine causes of action against Harnisch and Peconic, of which only one is now before us. That claim says that Sullivan was fired because he "spoke out" about "manipulative and deceptive trading practices," and that his dismissal violated "a company policy to prohibit retaliation" for such conduct. The complaint, however, does not identify any statement of this "company policy"; it infers the existence of the policy from Peconic's obligations under the securities laws and the firm's own Code of Ethics to avoid improper transactions, and from Sullivan's duty as Chief Compliance Officer to see that those obligations were performed. The gist of Sullivan's claim is that the legal and ethical duties of a securities firm and its compliance officer justify recognizing a cause of action for damages when the compliance officer is fired for objecting to misconduct.

On defendants' motion for summary judgment, Supreme Court held this claim to be legally sufficient, but the Appellate Division reversed and dismissed the claim (Sullivan v Harnisch, 81 AD3d 117 [1st Dept 2010]). The Appellate Division granted leave to appeal, and we now affirm.

II

Murphy held that, absent violation of a constitutional requirement, statute or contract, "an employer's right at any time to terminate an employment at will remains unimpaired" (58 NY2d at 305). In Murphy, we applied that rule to dismiss the claim of a plaintiff who said he was fired "because of his disclosure to top management of alleged accounting improprieties on the part of corporate personnel" (id. at 297-298). We reached similar results in Sabetay v Sterling Drug, Inc. (69 NY2d 329, 332 [1987]), where the plaintiff claimed "that he was discharged because he refused to participate" in illegal conduct including "tax avoidance schemes and maintenance of slush funds," and in Horn v New York Times (100 NY2d 85 [2003]), where a doctor claimed that she was fired for refusing to violate patient confidentiality. Plaintiff's claim here is also barred unless something in this case justifies an exception to the rule we stated in Murphy.

In general, as we pointed out in Horn, American courts, including our own, "have proved chary of creating common-law exceptions to the rule and reluctant to expand any exceptions once fashioned" (id. at 91). Indeed, we have recognized an exception only once, in Wieder v Skala (80 NY2d 628 [1992]). The plaintiff in Wieder was a lawyer who claimed to have been dismissed by his law firm "because of his insistence that the firm comply with the governing disciplinary rules by reporting professional misconduct" committed by one of the plaintiff's colleagues (id. at 631). We held his claim good against a motion to dismiss, in an opinion that stressed both the ethical obligations of members of the bar and the importance of those obligations to the employment relationship between a lawyer and a law firm. We said:

"[P]laintiff's performance of professional services for the firm's clients as a duly admitted member of the Bar was at the very core and, indeed, the only purpose of his association with defendants . . . .

[P]laintiff's duties and responsibilities as a lawyer and as an associate of the firm were so closely linked as to be incapable of separation. It is in this distinctive relationship between a law firm and a lawyer hired as an associate that plaintiff finds the implied-in-law obligation on which he founds his claim.

"We agree with plaintiff that in any hiring of an attorney as an associate to practice law with a firm there is implied an understanding so fundamental to the relationship and essential to its purpose as to require no expression: that both the associate and the firm in conducting the practice will do so in accordance with the ethical standards of the profession" (80 NY2d at 635-636).

We also referred in the Wieder opinion to "the unique function of self-regulation belonging to the legal profession" (id. at 636), and said that:

"these unique characteristics of the legal profession in respect to this core Disciplinary Rule make the relationship of an associate to a law firm employer intrinsically different from that of the financial managers to the corporate employers in Murphy and Sabetay"

(id. at 637).

It is obvious from the quoted language that we intended the exception to the at-will doctrine we recognized in Wieder to be a narrow one. The Appellate Division in this case said that Wieder is "sui generis" (81 AD3d at 123), but we do not need to go that far to decide this case. Assuming that there are some employment relationships, other than those between a lawyer and a law firm, that might fit within the Wieder exception, the relationship in this case is not one of them.

Sullivan stresses the importance of compliance officers in the overall scheme of federal securities regulation to which the two Peconic firms, registered investment advisers, are subject. The Securities and Exchange Commission (SEC) has found that "it is critically important for funds and advisers to have strong systems of controls in place" (Final Rule: Compliance Programs of Investment Companies and Investment Advisers, SEC Release Nos. IA-2204, IC-26299, § I), and requires each registered adviser to designate a chief compliance officer who will be responsible for administering policies and procedures designed to prevent violations of federal law and regulations (17 CFR § 275.206 [4]-7[a], [c]). From this, Sullivan reasons that compliance with securities laws was central to his relationship with Peconic in the same way that ethical behavior as a lawyer was central in Wieder to the plaintiff's employment at a law firm. But the analogy fails.

Important as regulatory compliance is, it cannot be said of Sullivan, as we said of the plaintiff in Wieder, that his regulatory and ethical obligations and his duties as an employee "were so closely linked as to be incapable of separation" (Wieder, 80 NY2d at 635). Sullivan was not associated with other compliance officers in a firm where all were subject to selfregulation as members of a common profession. Indeed, Sullivan was not even a full-time compliance officer. He had four other titles at Peconic, including Executive Vice President and Chief Operating Officer, and was, according to his claim, a 15% partner in the business. It is simply not true that regulatory compliance, in the words of Wieder, "was at the very core and, indeed, the only purpose" of Sullivan's employment.

It is beyond dispute that compliance with extensive federal regulations -- overseen, at firms like Peconic, by compliance officers -- is an integral part of the securities business. But the existence of federal regulation furnishes no reason to make state common law governing the employer-employee relationship more intrusive. Congress can regulate that relationship itself, to the extent that it thinks the objectives of federal law require it. Indeed, after the events involved in this case, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act (Pub L 111-203, 124 Stat 1376 [2010], codified at various sections of United States Code), which provides whistle blower protection, including a private right of action for double back pay, for employees who are fired for furnishing information about violations of the securities laws to the SEC (Dodd-Frank Act § 922 [a], 15 USC § 78u-6). That statute seems not to apply to conduct like that alleged in Sullivan's complaint; Sullivan does not claim to have blown a whistle -- i.e., to have told the SEC or anyone else outside Peconic about Harnisch's alleged misconduct -- but only to have confronted Harnisch himself. Nothing in federal law persuades us that we should change our own law to create a remedy where Congress did not.

* * *

See: http://www.nycourts.gov/ctapps/Decisions/2012/May12/82opn12.pdf

Outcome: Accordingly, the order of the Appellate Division should be affirmed with costs, and the certified question answered in the affirmative.

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