Levion v. Societe Generale
Filing
56
OPINION AND ORDER: Accordingly, for the reasons set forth above, Plaintiff's Motion to Preclude is denied, defendant's Motion for Summary Judgment is granted, and Plaintiff's claims are dismissed. the Clerk of the Court is respectfully directed to terminate the motions located at Doc. Nos. 32 and 39, and close this case. so Ordered. (Signed by Judge Richard J. Sullivan on 9/30/2011) (js)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
_____________________
No. 09 Civ. 5800 (RJS)
_____________________
MARTIN LEVION,
Plaintiff,
VERSUS
SOCIÉTÉ GÉNÉRALE,
Defendant.
__________________
OPINION AND ORDER
September 30, 2011
__________________
RICHARD J. SULLIVAN, District Judge:
Plaintiff Martin Levion brings this
diversity action against his former employer,
Société Générale (“SG”), for failure to pay
him an annual performance bonus after he
quit his job in 2007. Specifically, Plaintiff
alleges that he and SG negotiated a contract
providing him with an annual nondiscretionary bonus, and that SG breached
that contract when it reduced his expected
2006 bonus and refused to pay him a “pro
rata” bonus for 2007 after he resigned.
Plaintiff also claims that SG breached the
compensation agreement by failing to
include
revenues
from
particular
transactions. Additionally, Plaintiff makes
claims under New York Labor Law § 193
and common law based on SG’s alleged
failure to pay him performance bonuses.
SG has moved for summary judgment on
all of Plaintiff’s claims. For the reasons set
forth below, Defendant’s motion is granted.
I. BACKGROUND
A. Facts1
Defendant Société Générale hired
Plaintiff in 1990 as a Vice President in
Treasury. (Decl. of Norman Simon, dated
October 19, 2010, Doc. No. 33 (“Simon
Decl.”), Ex. 2A; Def. 56.1 ¶ 1.) In time,
1
The following facts are taken from the pleadings,
the parties’ Local Rule 56.1 Statements, the affidavits
submitted in connection with the instant motions, and
the exhibits attached thereto.
The facts are
undisputed unless otherwise noted. Where one
party’s 56.1 Statement is cited, the other party does
not dispute the fact asserted, has offered no
admissible evidence to refute that fact, or merely
objects to inferences drawn from that fact.
share in a bonus pool based on certain
percentages of DFP’s net profit and loss, or
“Net P&L” (Def. 56.1 ¶¶ 29-30), which was
to be defined “per the attached spreadsheet
and the following rules.”2 (Cannon Decl.,
Ex. 1A.) The 1994 Agreement further
provided that Plaintiff, as “[t]he Manager of
SGNY IRD[, would] receive 25% of the
amounts given by the preceding formulas,
plus any additional discretionary amount, for
1994 and 1995.” (Id. (emphasis added))
Plaintiff became Managing Director of an
SG group that dealt with fixed income
derivatives, credit derivatives, municipal
finance,
derivatives
marketing,
and
structured tax products. (Simon Decl., Ex.
2A; Compl. ¶ 12.) The group, which was
originally referred to as Interest Rate
Derivatives, or “IRD,” became known as
Derivatives and Financial Products, or
“DFP,” and was part of SG’s Debt and
Finance Division (“DEFI”). (Def. 56.1
¶¶ 27, 4.) DEFI was headed by Pierre
Schroeder from 1999 to 2003 and by Paolo
Taddonio from 2004 to July 2008. (Id. ¶ 5,
7.) Jean-Pierre Mustier headed DEFI at the
global level. (Id. ¶ 8.)
The record indicates that between 1994
and Plaintiff’s resignation in March 2007,
no new agreement was executed by the
parties.
Nevertheless, Plaintiff and his
group continued to receive bonuses roughly
in keeping with those paid in 1994 and
1995, in accordance with the DFP Formula.
(See Cannon Decl., Ex. 1B, 1C, 1D, 1E, 1G,
2A, 2B, 3A, 3B.) Like many professionals
in the financial services industry, Plaintiff
received a fixed regular salary during the
year, as well as a bonus in the first quarter of
the following year that typically dwarfed his
salary. (Simon Decl., Ex. 10A.) Thus, from
2001 to 2006, when Plaintiff’s base salary
remained fixed at $250,000 per year,
Plaintiff’s bonus was approximately $7
million for 2000, $12.7 million for 2001, $6
million for 2002, $6.5 million for 2003, $4.8
million for 2004, $6.9 million for 2005, and
$5 million for 2006. (Id.)
At the time of his hiring in June 1990,
Plaintiff received an offer letter from SG
indicating that his salary would be
“$5,192.31 bi-weekly [roughly $135,000
annually] . . . subject to an annual review on
the anniversary of hire.” (Simon Decl., Ex.
2A.) The letter also provided a guarantee
that “the bank [would] provide [him] with a
Bonus for 1990 performance, payable in
early 1991 of not less than $100,000.00.”
(Id.)
The record is silent as to any
compensation issues between the parties in
the years immediately following Plaintiff’s
hiring. In 1994, Plaintiff and his then
supervisor, Schroeder, executed a written
document entitled “Compensation Principles
for IRD New York” (“Compensation
Principles” or the “1994 Agreement”).
(Decl. of Ariel Cannon, dated December 1,
2010, Doc. No. 41 (“Cannon Decl.”), Ex. 1A;
Def. 56.1 ¶ 27.) Among other things, the
Compensation Principles contemplated a
method for calculating bonuses for Plaintiff
and the rest of the DFP group (the “DFP
Formula”). (Cannon Decl., Ex. 1A; Decl. of
Pierre Schroeder, dated November 24, 2010,
Doc. 42 (“Schroeder Decl.”) ¶ 4.)
Specifically, the Compensation Principles
provided that Plaintiff and his group were to
The undisputed record indicates that
during this time period, Plaintiff’s bonus
was, for the most part, formula-based and
derived largely from DFP’s Net P&L, which
was first calculated by DFP, confirmed and
approved by SG’s Accounting Group, and
then passed along to SG management. (Def.
56.1 ¶¶ 32-33, 35-36; Pl. 56.1 ¶¶ 147-152.)
Nevertheless, the record also reflects that
Plaintiff’s
compensation
arrangement
2
2
Neither party has produced the spreadsheet or rules.
“evolved as [DFP’s] business evolved.”
(Simon Decl., Ex. 5 at 54:19-21; Def. 56.1 ¶
44; Pl. 56.1 ¶¶ 146, 155.) Thus, Plaintiff at
times received higher percentages of the
bonus pool than that set forth in the 1994
Compensation Principles. (Pl. 56.1 ¶ 43;
Cannon Decl., Ex. 1D, 1E.) In addition, the
Net P&L – which formed the basis of
Plaintiff’s bonus – came to include revenue
from projects that were not mentioned in the
1994 Agreement. (Decl. of Martin Levion,
dated December 1, 2010, Doc. No. 43
(“Levion Decl.”) ¶ 15; Pl. 56.1 ¶¶ 123, 181;
Def. 56.1 ¶ 46.)
Another project not contemplated by the
Compensation Principles related to a series
of transactions known as “RIC” transactions,
in which SG restructured certain bonds, sold
the remaining product at a substantial
discount, and then took the difference
between the face value of the instruments
and the price at which they were sold as a
deduction for tax purposes. (Def. 56.1 ¶ 62;
Simon Decl., Ex. 6 at 242:2-24.) Yet
another project not mentioned in the 1994
Agreement involved a transaction known as
“FRED,” which was a balance sheet
transaction that resulted in a tax savings for
SG. (Def. 56.1 ¶ 66; Simon Decl., Ex. 6 at
246:6-24.)
Nevertheless, savings that
resulted from the RIC and FRED
transactions were calculated as revenues for
DFP and included in the Net P&L for
Plaintiff’s bonus pool in 1996, 1997 and
2002. (Def. 56.1 ¶¶ 65, 70.)
One such project, which was initiated by
DFP in the late 1990s, involved DFP’s entry
into a series of Non-Deliverable Forward
(“NDF”) transactions related to the Russian
ruble. (Def. 56.1 ¶ 105; Compl. ¶ 36.)
These transactions involved contracts
between SG and hedge funds, and SG and
its Russian affiliate, and were designed as a
hedge against Russian government bonds.
(Def. 56.1 ¶¶ 105, 107.) Although there is
no mention of the NDF transactions in the
1994 Agreement or in any iteration of the
DFP Formula, e-mails and correspondence
from 1998 to 1999 indicate that SG
management expected DFP to be credited
for these deals. (Cannon Decl., Ex. 13A,
13B, 13C, 13D; Def. 56.1 ¶ 123.)3
Beginning in 2004, the RIC and FRED
transactions came to be scrutinized by the
IRS as part of an extensive audit. (Def. 56.1
¶ 72.) Put simply, the IRS disagreed with
the tax position that SG, through DFP, had
taken with respect to those transactions. In
time, SG agreed to a settlement with the IRS
that required SG to restate its tax savings
and pay a penalty. (Def. 56.1 ¶¶ 73-74.)
The IRS settlement effectively unraveled the
transactions that had formed a significant
part of DFP’s prior years’ P&L and bonus
pool. As a result, SG management decided
3
As discussed below, because of an asymmetry in the
contracts executed between the parties in the NDF
transactions, when the ruble declined in value, SG
would only be obligated to pay the hedge funds upon
payment from the Russian affiliate. (Def. 56.1
¶ 108.) Thus, after a market decline, if “DFP [had]
been allowed to execute the documents as written,
[SG New York] would have been in a position to
have collected the $400 million . . . from Moscow . . .
[based on the asymmetry between the contracts]”
with SG and the hedge funds and the Russian
affiliate. (Simon Decl., Ex. 6 at 194:4-12.) The
hedge funds brought suit against SG for payment of
the $400 million, and litigated the issue for several
years. (Compl. ¶ 40.) Plaintiff asserts that “SG
asked [him] to wait until the conclusion of the Hedge
Fund litigation to compute compensation credit to
DFP for the NDFs . . .” (Pl. 56.1 ¶ 172.) The record
indicates that Schroeder “advised [Plaintiff] that, due
to related litigation with the two hedge funds, the
compensation effect of those transactions could only
take place when this litigation was complete.”
(Schroeder Decl. ¶ 9.) Plaintiff then requested
compensation for the NDF transactions in 2004, after
the conclusion of the litigation. (Cannon Decl. Ex.
13E.) Ultimately, SG management forgave the
Russian affiliate’s obligation to SG New York and
retained the $400 million benefit in Paris. (Pl. 56.1
¶ 169.)
3
properly accounting for profits generated by
NDF and other transactions in prior years’
bonuses. The Complaint also asserts claims
under New York Labor Law § 193 and
brings common law claims for breach of the
covenant of good faith and fair dealing and
unjust enrichment related to his bonuses.
to consider the financial impact of the RIC
and FRED requalifications when calculating
Plaintiff’s bonus for 2006, ultimately
reducing Plaintiff’s expected bonus of $8.5
million by $3.5 million. (Def. 56.1 ¶ 77.)
Plaintiff addressed concerns regarding the
reduction of his bonus to Mustier in an email, objecting that “[he had] always been
paid based on the actual P&L [that DFP had]
generated during the applicable year” and
that there was “no precedent for
reducing . . . individual bonuses.” (Cannon
Decl., Ex. 5B.) Mustier responded by
informing Plaintiff that “[t]here is nothing in
our agreement that prevents us from
charging you or your bonus pool for a major
adverse regulatory consequence in one of
your deals. It surely cannot be that you only
share in the profits from a transaction but
never in the losses they have incurred.” (Id.)
Defendant answered the Complaint on
August 14, 2009, and after extensive
discovery in the United States and Europe,
moved for summary judgment on October
19, 2010. On December 1, 2010, Plaintiff
moved to preclude consideration of a
document related to SG’s discretionary
bonus policy on the grounds that the
document was not produced during
discovery. Briefing on both motions was
completed by January 7, 2011.
II. LEGAL STANDARD
In January 2007, Plaintiff was informed
that his 2006 bonus would be reduced to
reflect the requalifications of the RIC and
FRED transactions. (Cannon Decl., Ex.
5B.) Additionally, SG decided to relocate
DFP from its office space near Plaintiff’s
home in Connecticut to SG’s principal
offices in New York City. (Def. 56.1 ¶ 9)
Unhappy with these decisions, Plaintiff
resigned on March 20, 2007. (Simon Decl.,
Ex. 2B) In his resignation letter, Plaintiff
demanded compensation that he claimed SG
owed him, including a pro rata portion of his
2007 bonus and return of $3.5 million that
was “improperly deducted” from his 2006
bonus. (Id.) When SG did not respond,
Plaintiff brought this suit. (Pl. 56.1 ¶ 16.)
The standard for summary judgment is
well settled. Pursuant to Rule 56(a) of the
Federal Rules of Civil Procedure, summary
judgment should be granted “if the movant
shows that there is no genuine dispute as to
any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R.
Civ. P. 56(a); see Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986). The moving
party bears the burden of proving that there
is no genuine issue of material fact.
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 256 (1986). Once the moving party has
met its burden, the nonmoving party “must
come forward with specific facts showing
that there is a genuine issue for trial.”
Caldarola v. Calabrese, 298 F.3d 156, 160
(2d Cir. 2002) (internal citations and
quotation marks omitted).
B. Procedural History
Plaintiff filed the Complaint on June 24,
2009, and alleges that SG breached his
employment contract by withholding $3.5
million from his 2006 bonus, by failing to
pay a pro rata bonus for 2007, and by not
In ruling on a motion for summary
judgment, the court must resolve any
ambiguity in favor of the nonmoving party.
Amnesty Am. v. Town of W. Hartford, 361
4
F.3d 113, 122 (2d Cir. 2004). The court “is
not to weigh the evidence but is instead
required to view the evidence in the light
most favorable to the party opposing
summary judgment, to draw all reasonable
inferences in favor of that party, and to
eschew credibility assessments . . . .”
Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.
1996). As a result, summary judgment will
not issue where “the evidence is such that a
reasonable jury could return a verdict for the
nonmoving party.” Anderson, 477 U.S. at
248. However, “a complete failure of proof
concerning an essential element of the
nonmoving party’s case” renders summary
judgment proper. Celotex, 477 U.S. at 323.
the Court has not considered the screen shot
in granting Defendant’s motion for summary
judgment, Plaintiff’s motion to preclude is
denied as moot. See Fifty-Six Hope Road
Music Ltd. v. UMG Recordings, Inc., No. 08
Civ. 6143 (DLC), 2011 WL 3874859, at *2
(S.D.N.Y. Aug. 31, 2011) (denying as moot
plaintiffs’ motion to exclude evidence
allegedly withheld during discovery when
certain claims were barred by the statute of
limitations); Auscape Int’l v. Nat’l
Geographic Soc’y, 409 F. Supp. 2d 235, 237
(S.D.N.Y. 2004) (finding no need to reach
defendants’ motion to preclude certain
evidence when summary judgment was
granted in defendants’ favor).
III. DISCUSSION
B. Breach of Contract Claims
A. Motion to Preclude
1. Wrongful Deduction of $3.5 Million
Plaintiff moves to strike and preclude
SG from relying on a screen shot of SG’s
purported company-wide bonus policy on
the grounds that this document was not
produced during discovery. (Pl. Mem. 2529.) Defendant argues that the screen shot
of SG’s “entre-net” discussing its underlying
bonus policy was not responsive to
Plaintiff’s document requests and, even if it
was, its nonproduction caused Plaintiff no
prejudice because the underlying content of
the discretionary policy was provided in
discovery. (Def. Reply 11-15.)
Plaintiff’s first cause of action alleges
that SG breached his employment contract
when it improperly withheld $3.5 million
from Plaintiff’s expected 2006 bonus.
Under New York law, “entitlement to a
bonus only exists where the terms of the
relevant contract require it.” Vetromile v.
JPI Partners, LLC, 706 F. Supp. 2d 442,
448 (S.D.N.Y. 2010). Thus, the absence of
such a contract would be fatal to Plaintiff’s
claim. “To create an enforceable contract
under New York law, there must be ‘a
manifestation of mutual assent sufficiently
definite to assure that the parties are truly in
agreement with respect to all material
terms.’” Piven v. Wolf Haldenstein Adler
Freeman & Herz LLP, No. 08 Civ. 10578
(RJS), 2010 WL 1257326, at *4 (S.D.N.Y.
Mar. 12, 2010) (quoting Express Indus. and
Terminal Corp. v. N.Y. State Dep’t of
Transp., 715 N.E.2d 1050, 1053 (N.Y.
1999). The fundamental precept of contract
interpretation is that agreements are
construed in accord with the parties’ intent,
“as expressed in the unequivocal language
Having reviewed Plaintiff’s document
requests, the Court is persuaded that
Plaintiff’s document requests were broad
enough to encompass the document and that
Defendant should have produced the bonus
policy screen shot during discovery.
However, it is difficult to see how Plaintiff
has been prejudiced by the late production.
From the outset of this litigation, SG has
maintained that bonuses were discretionary
with management. Nevertheless, because
5
his Complaint by recharacterizing his
contract in terms of the 1994 Compensation
Principles. Thus, according to Plaintiff’s
56.1 Statement, the parties “updated their
compensation agreement” in 1994, through
the Compensation Principles, “which [were]
signed by [Plaintiff] and Mr. Schroeder,
confirmed the framework for [Plaintiff’s]
compensation[,] . . . provided greater detail
concerning DFP’s bonus methodology [and]
governed the compensation paid to DFP and
[Plaintiff] for more than a decade.” (Pl. 56.1
¶ 137; compare Compl. ¶¶ 19-23.). Once
again,
however,
Plaintiff
has
mischaracterized the document in question.
In fact, the “Compensation Principles”
clearly and unequivocally set forth various
“Elements of Incentives,” of which a
relevant term provides, “The Manager of
SGNY IRD [Plaintiff] will receive 25% of
the amounts given by the preceding
formulas, plus any additional discretionary
amount, for 1994 and 1995.” (Cannon
Decl., Ex. 1A (emphasis added).) By its
very terms, the Compensation Principles
guarantee Plaintiff a bonus for 1994 and
1995, and those years only. Nothing in the
language of the contract indicates that
Plaintiff was guaranteed a bonus in
subsequent years or that the 1994
Agreement was meant to be extended
indefinitely. Put simply, Plaintiff’s assertion
that the 1994 Agreement provided him with
a guaranteed bonus based on the DFP
Formula in subsequent years is contradicted
by the plain language of the 1994
Agreement.
they have employed.”
Terwilliger v.
Terwilliger, 206 F.3d 240, 245 (2d Cir.
2000). “‘Contract language is ambiguous if
it is capable of more than one meaning when
viewed objectively by a reasonably
intelligent person who has examined the
context of the entire integrated agreement.’”
In re Delta Airlines Inc., 313 F. App’x 430,
434 (2d Cir. 2009) (quoting Seiden Assocs.
Inc. v. ANC Holdings, Inc., 959 F.2d 425,
428 (2d Cir. 1992)). By contrast, contract
language is “unambiguous when it has a
definite and precise meaning and where
there is no reasonable basis for a difference
of opinion.” Klos v. Lotnicze, 133 F.3d 164,
168 (2d Cir. 1997). “[T]he fact that one
party may have a different interpretation of
the language does not make it any less
plain.” Harris Trust and Sav. Bank v. John
Hancock Mut. Life Ins. Co., 970 F.2d 1138,
1147 (2d Cir. 1992).
Plaintiff’s first cause of action alleges
that Plaintiff entered into a contract with SG
“in 1990, when he accepted employment.”
(Compl. ¶ 49.) According to the Complaint,
that contract “provided that [Plaintiff] would
receive an annual non-discretionary bonus,
which would be tied to the P&L of the DFP
Group.” (Id.) However, the terms of the
June 6, 1990 letter belie that assertion.
Indeed, although the 1990 letter clearly
guarantees Plaintiff a bonus, that guarantee
is expressly limited to 1990. (Simon Decl.,
Ex. 2A (“[T]he bank will provide you with a
Bonus for 1990 performance, payable in
early 1991 of not less than $100,000.00.”).)
The letter says nothing whatsoever about
tying the bonus to the “P&L of the DFP
Group,” which had not yet been created, nor
does it suggest in any way that the guarantee
of a 1990 bonus was a guarantee for future
years.
Plaintiff’s argument that “reference to
1994-95 [in the Compensation Principles]
applied
to
the
phrase
‘additional
discretionary amounts’” (Pl. 56.1 ¶ 40), is
wholly at odds with the actual language of
the Compensation Principles.
Indeed,
Plaintiff’s reading of the contract would
effectively edit the second comma out of the
Perhaps mindful of this clear error in the
Complaint, Plaintiff now attempts to amend
6
Having predicated his argument on the
1994 Agreement being indefinitely in effect,
notwithstanding
its
unequivocal
acknowledgement that Plaintiff’s bonus was
guaranteed for only 1994 and 1995, Plaintiff
has not even attempted to argue that the
parties reached an express binding
agreement to extend or modify the terms of
the 1994 Agreement beyond 1995. At most,
Plaintiff invites the Court to ramble through
a forest of emails, testimony, draft
agreements, and correspondence, none of
which demonstrates the existence of a
definite contract between the parties.
Indeed, although it is certainly the case that
“parties are free to enter into a binding
contract without memorializing their
agreement in a fully executed document,”
Winston v. Mediafare Entm’t Corp., 777
F.2d 78, 80 (2d Cir. 1986), Plaintiff does not
allege such an unwritten agreement and
refers explicitly to a signed agreement. (See
Compl. ¶ 20 (“Mr. Levion and Soc Gen
management negotiated a contract (the
“Contract”) . . . that consisted of a
comprehensive formula . . . signed by both
Mr. Levion and Soc Gen management,
which incorporated the annual profit and
loss statement . . . .”)) Nor do any of the
facts alleged by Plaintiff alter the conclusion
that the 1994 Agreement was the last
contract executed by the parties.4
sentence, something courts are not free to
do. See MBIA Ins. Corp. v. Cooperatieve
Centrale Raiffeisen-Boerenleenbank B.A.,
No. 09 Civ. 10093 (RJS), 2011 WL
1197634, at *11 (S.D.N.Y. Mar. 25, 2011)
(“‘[C]ourts may not by construction add or
excise terms, nor distort the meaning of
those used and thereby make a new contract
for the parties under the guise of interpreting
the writing.’” (quoting Vt. Teddy Bear Co. v.
538 Madison Realty Co., 1 N.Y.3d 470, 475
(App. Div. 2004)); see also Law Debenture
Trust Co. of N.Y. v. Maverick Tube Corp.,
595 F.3d 458, 467 (2d Cir. 2010) (“[T]he
court should not find the contract ambiguous
where the interpretation urged by one party
would ‘strain[] the contract language beyond
its reasonable and ordinary meaning.”
(quoting Bethlehem Steel Co. v. Turner
Constr. Co., 141 N.E.2d 590, 593 (N.Y.
1957)). Equally unavailing is Plaintiff’s
resort to extrinsic evidence for the
proposition that both he and Schroeder
intended for the Compensation Principles to
extend beyond the 1994-95 time period. (Pl.
56.1 ¶ 138, 140; Levion Decl. ¶ 20;
Schroeder Decl. ¶ 6.) Because the Court
finds the 1994 Agreement to be
unambiguous, the Court need not – and
should not – look to evidence beyond the
“four corners” of the document to inform its
meaning. See Kamfar v. New World Rest.
Group, Inc., 347 F. Supp. 2d 38, 48-49
(S.D.N.Y. 2004) (“Where the agreement is
unambiguous, a court may not admit
extrinsic evidence and interprets the plain
language of the agreement as a matter of
law.”); see also RJE Corp. v. Northville
Indus. Corp., 329 F.3d 310, 314 (2d Cir.
2003) (“Where a contract is clear and
unambiguous on its face, the intent of the
parties must be gleaned from within the four
corners of the instrument, and not from
extrinsic evidence.” (internal quotations and
citations omitted)).
4
Further, if Plaintiff is now implying that subsequent
communications created a binding oral modification
to the 1994 Agreement, extending it beyond its
explicit durational terms, he should have raised this
theory well before this stage. Indeed, “[b]ecause a
failure to assert a claim until the last minute will
inevitably prejudice the defendant, courts in this
District have consistently ruled that it is inappropriate
to raise new claims for the first time in submissions
in opposition to summary judgment.” Insinga v.
Cooperatieve Centrale Raiffeisen Borenleenbank
B.A., No. 03 Civ. 7775 (RJH), 2005 WL 2345293, at
*10 (S.D.N.Y. Sept. 20, 2005) (quoting Beckman v.
U.S. Postal Service, 79 F. Supp. 2d 394, 407
(S.D.N.Y. 2000)).
7
Plaintiff “in coordination with Legal.” (Id.,
Ex. 2B.) Once again, there is no indication
in the pleadings or the record as to whether
or how those negotiations were concluded.
An email from 2004 debates the “bonus
rate,” saying that it was “prescribed as 14%
- 15%.” (Id., Ex. 1G.) Also before the
Court is a September 2005 e-mail, attaching
a “Cash Bonus Plan for Employees of the
Derivatives and Financial Products Group,”
which purported to “restat[e] a cash bonus
plan that has been in effect for a number of
years.” (Id. Ex. 2C.) That agreement had
numerous blank spaces, missing material
terms, and was never signed. (Id.)
For instance, Plaintiff points to an
August 9, 2000 email between Schroeder
and Mustier in which the two men discussed
a “proposed new bonus system for DFP,”
which reflected Plaintiff’s request to
increase the DFP Group’s “minimum
guaranteed” from 12% to 14-18%. (Cannon
Decl., Ex. 1C.) Plaintiff also refers to an
October 2000 memorandum, which stated
that SG Management and Plaintiff had
“come to an agreement covering all
outstanding [compensation] issues for the
next few years.” (Id., Ex. 1D.) One day
later, however, a “not completely finalised”
version of a “term sheet detailing [SG’s]
proposed compensation agreement with
Martin Levion for the years 2000 to 2003”
was circulated.
(Id., Ex. 1E.)
The
Complaint makes no reference to such an
agreement, and the record is silent as to
whether the proposed agreement was ever
adopted. Similarly, Plaintiff attaches two
“DECC/AMER Bonus System” updates
from 2000 and 2002, which purportedly
detailed bonus provisions regarding the DFP
Group, including a note stating that the
manager of the DFP desk, Plaintiff, would
receive 25% of the total amount calculated
by application of the preceding formulas, as
well as discussion of the “[a]mount
guaranteed to the salespeople.” (Id., Ex. 3A,
3B.)
Once again, the pleadings and
submissions of the parties are silent as to
whether and when such an agreement was
reached. In March 2003, Schroeder sent
Mustier and others an email discussing
Plaintiff’s dissatisfaction with his bonus
compensation and proposing a “bonus
system” that evidently would serve as an
“agreement for 2003, 2004 & 2005.” (Id.,
Ex. 2A.) Later, Schroeder sent the same
parties an e-mail with the subject line
“Compensation Agreement with DFP for
2003 and 2004,” in which Schroeder
outlined the method for bonus calculation
and contemplated confirming the terms with
Despite the references to “agreements,”
“bonus systems,” and “plans,” the record
does not show – and Plaintiff does not allege
– that these discussions or proposals ever
resulted in a new enforceable agreement.
There is no indication that any agreement
other than the 1994 Agreement was ever
executed. Nor has Plaintiff pleaded an oral
contract. (See Compl. ¶ 20 (“Mr. Levion
and Soc Gen management negotiated a
contract . . . that consisted of a
comprehensive formula . . . signed by both
Mr. Levion and Soc Gen management . . . .”
(emphasis added)). The record indicates
that the parties knew how to craft a binding
written agreement when they wanted to;
they did so with regard to Plaintiff in 1990
and 1994, and again in 2007 for DFP Group
members who stayed at SG after the Group
moved to Manhattan in 2007 and Plaintiff
and others had quit the firm. (Levion Decl.
¶ 32.) The choice not to craft such an
agreement – or to abandon drafts of such an
agreement – indicates that the parties
ultimately did not intend to be bound by an
enforceable contract.
In fact, Plaintiff
himself admitted that an attempt to
memorialize his compensation arrangement
in 2004 was abandoned after SG and
Plaintiff “jointly concluded that the
8
unsatisfactory bonus was to walk away.
This is precisely what he did in 2007, and it
would be difficult to say that Plaintiff was
ill-served by an at-will arrangement that
paid him more than $50 million dollars in
the span of less than a decade.
flexibility of the current arrangement was
superior.” (Levion Decl. ¶ 23.)
In the face of this evidence and logic,
Plaintiff makes several arguments, none of
which is availing but which nevertheless
serve to highlight Plaintiff’s fundamental
misunderstanding of contract law. First,
Plaintiff makes much of the fact that his
bonus was “formula-based” and not
subjectively determined.
But this
observation, even if true, does nothing to
alter the non-contractual nature of his bonus
compensation. Whether based on a formula,
seniority, a committee, or a Ouija board,
Plaintiff’s bonus was never guaranteed,
other than in 1990 and 1994. In the absence
of such a contractual arrangement, Plaintiff
cannot claim that he was entitled to a
particular bonus.
Of course, characterizing Plaintiff as an
at-will employee does not mean that he had
no say in the financial terms of his continued
employment. Like any at-will employee,
Plaintiff had considerable leverage in
negotiating
compensation
with
his
employer.
As long as Plaintiff was
producing for the bank, SG had every
incentive to pay Plaintiff what was
necessary to retain him, up to the limit of
what the market would bear for a
replacement. Conversely, Plaintiff had an
incentive to stay at SG as long as his total
compensation was greater than what he
could make elsewhere, taking into account
transaction
costs
and
non-monetary
incentives, such as having office space in
Connecticut, near his home. Neither party
needed a contract to preserve its interests.
Indeed, the decision to forego the certainties,
and restrictions, of a formal contract in favor
of the greater flexibility afforded by an atwill arrangement can hardly be considered
irrational.
Second, Plaintiff insists that his bonus
was “consistently” granted in conformity
with the DFP Formula and that the decision
to hold back $3.5 million was
“unprecedented” during his tenure at SG.
Once again, this assertion – even if true (and
there is much in the record to demonstrate
that Plaintiff’s bonus calculation was an
“evolving” process that ultimately included
many factors not set forth in the DFP
Formula (Simon Decl., Ex. 5 at 54:19-21)) –
does nothing to alter the non-contractual
nature of Plaintiff’s bonus arrangement. A
guaranteed bonus in year one, followed by
comparable bonuses in years two and three,
does not create an entitlement to an equal
bonus in years four and beyond. As noted
above, “entitlement to a bonus only exists
where the terms of the relevant contract
require it.” Vetromile, 706 F. Supp. 2d at
448.
Absent a guarantee, Plaintiff’s
expectations concerning his 2006 bonus
were just that – expectations, which are not
the equivalent of a contract. He was an atwill employee whose ultimate recourse to an
Because the 1990 Letter and 1994
Compensation Principles constitute the only
contractual guarantees between Plaintiff and
SG, and because those bonus guarantees are
expressly limited to the years 1990, 1994,
and 1995, Plaintiff has failed to demonstrate
the existence of a contract that would have
entitled him to a bonus in 2006.5
5
Even if the 1994 Agreement were extended all the
way to 2007, there is nothing in that Agreement to
suggest that management was not free to subtract
from DFP’s P&L the anticipated costs of a regulatory
action that unraveled a transaction that Plaintiff had
championed, and been compensated for, in the past.
Nothing in the Compensation Principles can be read
9
Accordingly, Plaintiff’s claim
additional $3.5 million must fail.
for
receive a bonus.6 The language of the
Compensation Advices given to Plaintiff
each year confirms this policy: in order to
receive a cash bonus, an employee had to be
“actively employed by SG . . . on the
payment date specified in this Advice . . .
and [he must not have] given notice of
termination on or prior to the above
mentioned payment date . . . .” (Simon
Decl., Ex. 10A.) Because Plaintiff resigned
in from SG in March 2007, he cannot claim
a pro rata bonus, which would have been
payable a year after he left the bank.
an
2. Failure to Pay 2007 Bonus
Plaintiff also alleges that SG “breached
its duty under the Contract” by not paying
him a pro rata portion of a bonus based on
the DFP Group’s Net P&L at the time of his
departure in March 2007. (Compl. ¶ 58.)
Plaintiff argues that SG’s refusal to pay a
bonus based on the profits earned by the
DFP Group through March 2007 was
“contrary to the terms of the parties’
agreement.” (Id.) This count fails for all the
same reasons Plaintiff’s first count fails:
there simply was no contract or legally
enforceable agreement beyond 1995.
Finally, Plaintiff’s assertion that he was
entitled to a pro rata bonus based on the
DFP Group’s Net P&L at “the time of [his]
departure from Soc Gen in March 2007”
defies both logic and the language of the
1994 Agreement. (Compl. ¶ 58.) As noted
above, the 1994 Compensation Principles
determined bonuses on the basis of “Net
P&L.” There is no dispute that “Net P&L”
was a year-end calculation that involved
input from the manager of DFP, the
Accounting Department, and senior
management. (Levion Decl. ¶ 17; Pl. 56.1 ¶
35-37).
By year-end 2007, DFP had
actually lost money, such that the Net P&L
was negative. (Simon Decl., Ex. 10B.)
Thus, even if Plaintiff were entitled to a pro
rata bonus notwithstanding his resignation,
his bonus would have been zero. The
suggestion that an employee could quit the
firm in March in order to lock in present
gains, and avoid future losses, when the true
“Net P&L” for the year was negative would
create perverse incentives for individuals
and the bank.
Absent clear language
evidencing such an intent, the Court will not
Moreover, even if the 1994 Agreement
extended to 2007, there is nothing in the
language of the Agreement to suggest that
Plaintiff was guaranteed a pro rata bonus to
be paid a year after he had resigned from
SG.
In the absence of a contractual
requirement, “‘[a]n employee’s entitlement
to a bonus is governed by the terms of the
employer’s bonus plan.’” O’Dell v. Trans
World Entm’t Corp., 153 F. Supp. 2d 378,
397 (S.D.N.Y. 2001) (quoting Hall v. United
Parcel Serv. Of Am., Inc., 555 N.E.2d 273,
279 (N.Y. 1990)). The undisputed facts
indicate that SG’s general policy with regard
to bonuses was that employees must be
currently employed at SG, and must not
have submitted their resignation, in order to
to “prevent . . . [SG] from charging [Plaintiff] for a
major adverse regulatory consequence in one of [his]
deals.” (Cannon Decl., Ex. 5B.) Mustier’s position
that “surely [it] cannot be that [Plaintiff] only share in
the profits from a transaction but never in the losses
they have incurred” is completely consistent with the
terms of the 1994 Agreement, were it still in effect in
2007.
6
In reaching this conclusion, the Court does not rely
on the screenshot at issue in Plaintiff’s Motion to
Preclude.
Rather, the Court looks to the
Compensation Advices and testimony. (Simon Decl.,
Ex. 3 at 48:14-24; 52:22-53:25; Ex. 10A; Def. 56.1 ¶
52; Pl. 56.1 ¶ 57.)
10
presume that the parties contracted for such
an illogical and ultimately mischievous
result.
agreement guaranteeing such compensation.
The record indicates that SG management
contemplated compensating the DFP Group
for these transactions. (Cannon Decl., Ex.,
13A, 13B, 13C, 13D.) The record also
shows that Plaintiff inquired about
compensation for the NDF transactions in
2004 after the conclusion of the litigation
(Id., Ex. 13E), and that Plaintiff had many
“conversations about this issue” with SG
management (Id., Ex. 15A at 190:13-14).
The record also shows that Schroeder
discussed NDF compensation with Plaintiff
and “advised [him] that . . . the
compensation effect of those transactions
could only take place when this litigation
was complete.” (Schroeder Decl. ¶ 9.)
Clearly, these facts – even taken in the light
most favorable to Plaintiff – do not amount
to an enforceable contract.
At most,
Plaintiff had an agreement with SG
management
to
further
discuss
compensation issues regarding the NDF
transactions. Such an agreement to further
negotiate will not support Plaintiff’s breach
of contract claim. See Joseph Martin, Jr.
Delicatessen, Inc. v. Schumacher, 52 N.Y.2d
105, 109 (N.Y. 1981) (“[I]t is rightfully well
settled in the common law of contracts in
this State that a mere agreement to agree, in
which a material term is left for future
negotiations, is unenforceable.”); see also
Gould v. Lightstone Value Plus Real Estate
Inv. Trust, Inc., 301 F. App’x. 97, 100 (2d
Cir. 2008) (“[A]n agreement to agree . . . [is]
unenforceable as an illusory promise.”
(citing Tractebel Energy Mktg., Inc. v. AEP
Power Mktg., Inc., 487 F.3d 89, 95 (2d Cir.
2007)).
In light of the foregoing, the Court finds
that Plaintiff is not entitled to a pro rata
bonus for 2007.
3. Failure to Compensate for NDF and
TOBP Transactions
Plaintiff’s third and fourth counts
involve SG’s alleged failure to provide
Plaintiff with specific compensation from
the NDF7 and TOBP8 transactions. Again,
these claims fail because Plaintiff has not
presented sufficient evidence to demonstrate
that there was a valid contract between
himself and SG that extended beyond the
clear durational terms of the 1994
Agreement.
To the extent that Plaintiff suggests that
he had a separate agreement with SG
management to be compensated based on
the proceeds from the NDF transaction at
the conclusion of the hedge fund litigation,
his claim fails for the same reason that his
previous claims fail: he simply does not
produce evidence of a valid enforceable
7
After years of litigation with the hedge funds, SG
settled with the Moscow affiliate and forgave the
$400 million debt to DFP, thus precluding those
funds from being calculated in DFP’s Net P&L for
bonus compensation purposes. (Pl. 56.1 ¶ 169.)
8
From 1999 to 2004, DFP pursued a project known
as the “Tender Option Bond Program” (“TOBP”),
whereby SG established trusts through which the
bank converted long-term municipal bonds into a
short-term money market instrument. (Def. 56.1 ¶
86.) One of the collateral benefits of the TOBP was
significant tax savings to SG. (Def. 56.1 ¶ 84.)
Although the DFP Formula did not contain
provisions about the TOBP, correspondence referring
to drafts of a compensation agreement indicates that
Plaintiff was to be paid 40% of TOBP’s contribution
to the Bonus Pool. (Def. 56.1 ¶ 88; Cannon Decl.,
Ex. 1E.)
Likewise, Plaintiff’s claims for breach of
contract related to TOBP fail because
Plaintiff has not presented sufficient
evidence of a contractual guarantee to
compensation based on TOBP. Plaintiff
refers to e-mails exchanged between SG
11
determined on a time, piece, commission or
other basis.” (N.Y. Lab. Law § 190(1)).
management reflecting an arrangement
whereby Plaintiff was to receive 40% of the
TOBP bonus pool attributable to the TOBP
transactions. In addition to undermining
Plaintiff’s earlier contract arguments –
which are based on a purported agreement to
pay him 25% of the Group’s Net P&L –
these e-mails at most indicate management’s
arguably surreptitious intention to prevent
DFP from realizing the full benefit of TOBP
profit. Although Plaintiff makes much of
the intrigue surrounding this drama, he fails
to recognize that such communications do
little to establish the existence of an
enforceable contract with Plaintiff. (See
Cannon Decl., Ex. 5B, 8A, 8B, 8C, 8D, 8E.)
The record shows that the parties
contemplated forming such an agreement
(Id., Ex. 1E, 2A, 2B), and that DFP’s Net
P&L historically included TOBP proceeds
(Id., Ex. 4A, 5A, 5C), but at no point did the
parties form a legally enforceable contract.
SG may be guilty of an objectionable lack of
transparency with regard to TOBP bonus
money, but it is not in breach of a contract
with Plaintiff.
“It is settled that [t]he term ‘wages,’
despite its broad definition does not
encompass an incentive compensation plan,”
such as where an “employee receives a
guaranteed salary and may also receive
supplemental income based upon the dual
performance of the employee and the
business or as a result of other factors
outside of the employee's control.” Truelove
v. Northeast Capital & Advisory Inc., 702
N.Y.S.2d 147, 149 (App. Div. 2000)
(internal citations and quotation marks
omitted). In that vein, New York courts
have excluded formula-based compensation
plans from the statutory definition of
“wages” when such plans are based on
factors outside the employee’s control. See
Ferrari v. Keybank Nat’l Ass’n, No. 06-cv6525, 2009 WL 35330, at *13 (W.D.N.Y.
Jan. 5, 2009) (finding that the statutory
entitlement to a wage excluded a formulabased compensation plan that reflected
combination of individual, team, and
company performance). Under New York
case law, bonus payments “contingent and
dependent, at least in part, on the financial
success of the business enterprise,” and
based on factors “outside the scope of the
employee’s actual work,” are not “wages”
under the meaning of Section 193. Truelove
v. Northeast Capital & Advisory, Inc., 95
N.Y.2d 220, 223-25 (N.Y. 2000) (citing
Tischmann v. ITT/Sheraton Corp., 882 F.
Supp. 1358, 1370 (S.D.N.Y. 1995)). In
Tischmann, the court awarded summary
judgment to the employer on the employee’s
Labor Law claim because the plaintiff’s
discretionary bonus payment was tied to the
overall output of the department, and
therefore fell outside the purview of the
definition of “wage.” 882 F. Supp. at 1370;
see also Hernandez v. Intercos Am., Inc.,
No. 06 Civ. 13314 (GEL), 2007 WL
For these reasons, the Court finds that
Plaintiff’s third and fourth contract claims
also fail.
C. New York Labor Law Claims
In addition to his breach of contract
claims, Plaintiff alleges that SG violated
New York Labor Law, N.Y. Lab. Law §
193, by reducing his 2006 bonus, failing to
pay a 2007 bonus, and failing to compensate
him for the TOBP revenue. Section 193
provides that “[n]o employer shall make any
deduction from the wages of an employee,”
except under certain enumerated conditions
not relevant here. Under the law, “wage” is
defined as “the earnings of an employee for
labor or services rendered, regardless of
whether the amount of earnings is
12
Thus, absent a contract guaranteeing such a
bonus, Plaintiff’s Labor Law claims must be
dismissed.
4458116, at *1 (S.D.N.Y. Dec. 19, 2007)
(“Since eligibility under the plan invoked by
the plaintiff depends in part on the
achievement of corporate goals beyond the
control or effort of the plaintiff herself, there
is thus no basis for a statutory claim under
the New York Labor Law.”); Int’l Paper Co.
v. Suwyn, 978 F. Supp. 506, 514 (S.D.N.Y.
1997) (“Under New York law, ‘incentive
compensation based on factors falling
outside the scope of the employee’s actual
work is precluded from statutory
coverage.’”) (quoting Tischmann, 882 F.
Supp. at 1370)); Dean Witter Reynolds, Inc.
v. Ross, 429 N.Y.S.2d 653, 658 (N.Y. App.
Div. 1980) (finding that incentive pay that
depended on the overall output of
department did not constitute a “wage”;
incentive pay is not a “wage” until it is
actually earned and vested).
D. Good Faith and Fair Dealing
As an alternative argument, Plaintiff
alleges that SG breached the implied
covenant of good faith and fair dealing when
it reduced his 2006 bonus, failed to pay him
a bonus for 2007, and improperly
compensated him for the NDF and TOBP
transactions. (Compl. ¶¶ 92-94.)
Under New York law, a covenant of
good faith and fair dealing is implicit in all
contracts. Tractbel Energy Mktg., 487 F.3d
at 98. However, the covenant of good faith
cannot be used to impose obligations that
were not explicitly part of the agreement;
instead, a party’s obligation under the
covenant of good faith and fair dealing is
“derivative of its contractual obligations.”
Bear Stearns Inv. Prods., Inc. v. Hitachi
Auto. Prods., Inc., 401 B.R. 598, 628
(S.D.N.Y. 2009). In other words, in order to
make a claim for breach of the covenant of
good faith and fair dealing, there must be a
contract in the first place. As discussed
above, there simply was no contract between
Plaintiff and SG that entitled him to a bonus
for 2006 and 2007.
Absent such an
agreement, Plaintiff cannot prevail on his
claim for breach of the covenant of good
faith and fair dealing other than under the
1990 and 1994 Agreements.
Plaintiff’s claims under New York Labor
Law fail as a matter of law because, like the
bonus payment in Tischmann, his
compensation does not constitute “wages”
within the meaning of the statute. Although
the definition of “Net P&L” is missing from
the 1994 Agreement provided to the Court,
there is no dispute that “Net P&L” related to
revenues of the group as a whole, not simply
the efforts of Plaintiff. Plaintiff’s bonus
payments were dependent on the success of
the entire DFP group, which consisted of as
many as 27 professionals, including 12
managing directors (Levion Decl. ¶ 32), and
were not commissions based purely on his
own personal productivity. With regard to
TOBP, Plaintiff’s bonus payments were also
dependent on the tax positions taken by SG
as a whole, which were also dependent on
factors outside his own personal efforts.
Plaintiff was guaranteed a salary – which
does constitute a “wage” under the meaning
of the statute – but his bonus payments were
supplemental and dependent on the
transactions and revenues generated by DFP.
Furthermore, it is well-settled that New
York law does not recognize this cause of
action with regard to at-will employees.
Murphy v. Am. Home Prod. Corp., 58
N.Y.2d 293, 304-05 (N.Y. 1983). Plaintiff
has not alleged that he was anything other
than an at-will employee; the fact that he left
SG abruptly in 2007 belies any claim to the
13
No. 09 Civ. 4595 (PKC), 2010 WL
1644949, at *8-9 (S.D.N.Y. Apr. 14, 2010)
(granting employer’s motion to dismiss
claim for bonus where plaintiff’s complaint
did not allege that he rendered services to
his employer that were beyond the scope of
his duties and that the salary did not
constitute the reasonable value for the
services rendered).
contrary. Thus, Plaintiff’s claim for breach
of implied obligations cannot survive.
E. Unjust Enrichment
Plaintiff’s final claim is that SG was
unjustly enriched when it failed to
compensate Plaintiff for his efforts. Plaintiff
alleges that he conferred a benefit on SG by
providing it significant tax savings
opportunities, and that SG retained the
benefit without properly compensating
Plaintiff. (Compl. ¶¶ 97-99.)
IV. CONCLUSION
At the end of the day, Plaintiff’s
Complaint is an elaborate effort to
recharacterize his relationship with SG. But
such an after-the-fact recharacterization is
not permissible. At all times, Plaintiff had
considerable market power as an at-will
employee in the lucrative and rarified field
of derivative transactions and structured
products. Like hundreds of other such
specialists, he engaged in an annual dance
for bonus compensation, the outcome of
which determined whether he stayed with
his current employer or moved to greener
pastures elsewhere. He was an unrestricted
free agent with impressive options. For
approximately 16 years, the at-will
arrangement worked to his advantage. He
made literally tens of millions of dollars in
bonuses during that time. In 2007 he was
unhappy with his bonus – a mere $5 million
– prompting him to quit. Whether his
unhappiness was justified or unjustified (the
record is unclear as to whether Plaintiff has
found comparably lucrative work in his field
or in an equally remunerative activity, such
as pitching for the Yankees), Plaintiff has
clearly offered no basis in law that would
entitle him to the bonus money he now
seeks.
To prevail on an unjust enrichment
claim, a plaintiff must prove that the
defendant received a benefit at the plaintiff’s
expense and that retention of that benefit
would be unjust. Thayer v. Dial Indus.
Sales, Inc., 189 F. Supp. 2d 81, 91
(S.D.N.Y. 2002).
However, the law is
clear that a plaintiff may not allege that his
former employer was “unjustly” enriched at
his
expense
when
the
employer
compensated the plaintiff by paying him a
salary. Marmilowicz v. The Hartford Fin.
Servs. Group, No. 11 Civ. 539, 2011 WL
2936013, *12 (CM) (DCF) (S.D.N.Y. July
14, 2011) (incentive compensation was
designed to reward exceptional employees
by supplementing their salaries, and
therefore employee’s unjust enrichment
claim failed).
Like the unsuccessful plaintiff in
Marmilowicz, Plaintiff was compensated for
his work at SG with a salary. Plaintiff has
not indicated that the services he provided
SG exceeded the scope of his duties as a
Managing Director of DFP.
Because
Plaintiff has failed to present evidence – or
even allege – that his salary did not
constitute reasonable value for the services
he provided to SG, his claim under unjust
enrichment theory also fails. See also
Hughes v. Standard Chartered Bank, PLC,
Accordingly, for the reasons set forth
above, Plaintiff’s Motion to Preclude is
denied, Defendant’s Motion for Summary
Judgment is granted, and Plaintiff’s claims
14
are dismissed. The Clerk of the Court is
respectfully directed to terminate the
motions located at Doc. Nos. 32 and 39, and
close this case.
SO ORDERED.
Dated: September 30, 2011
New York, New York
***
Plaintiff is represented by Ariel Purnell
Cannon, Thomas Dewey, Chi-Ru Jou, and
Keara Bergin of Dewey, Pegno &
Kramarsky, LLP, 777 Third Avenue, New
York, N.Y. 10017.
Defendant is represented by Jade Burns,
Kevin Leblang, and Norman Simon of
Kramer Levin Naftalis & Frankel, LLP,
1177 Avenue of the Americas, New York,
N.Y. 10036.
USDSSDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#: ______________
I DATE FILED: /0-3. - II
15
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