In Thys v. Fortis, the Appellate Division, First Department reinstated a claim of conversion of money for L&R's client against Fortis Bank.

On June 15, 2010, the New York Appellate Division, First Department, reversed the trial court's order and reinstated the claim for conversion asserted by L&R's client Jacques Thys against his former employer, Fortis Bank NV. From September 2000 until April 2006, Thys served as Fortis' US Country Manager for Banking Operations. For 2005, Fortis announced that Thys would be paid bonus totaling €375,000. As an expatriate, Thys had the right under his arrangements with the firm to take his bonus in either dollars or euros. Thys had chosen to be paid in euros. Nonetheless, on or around April 14, 2006, Fortis paid Thys $198,230.73, net of taxes. At that time (i.e., April 14, 2006), under the prevailing exchange rate, €375,000 was the equivalent of $454,105.11. The net payment in $US dollars of $198,230.73 was less than what Thys would have received in euros had the bonus been paid in euros (even taking into account tax withholdings).

After discussing the issue with Fortis, Thys agreed to return the money he had been paid, on the express understanding that Fortis would replace that amount, plus provide him with additional amounts (all in euros), to bring his payment up to the full €375,000 that had been awarded to him. In spite of this understanding, after Thys returned $192,000 to Fortis (taking into account reimbursement for expenses totaling $6,230.73 that the parties at that time thought, incorrectly as it turns out, Fortis owed to Thys), Fortis kept, without having secured Thys' permission, all the money that Thys had returned and never paid him back anything. The First Department held, in reversing the lower court, that Thys had properly pleaded a claim for conversion of money under New York common law.

On August 19, 2009, the United States District Court in Los Angeles confirmed this arbitration award and rejected Countrywide's appeal to vacate the award as being contrary to the law. Countrywide did not appeal the breach of contract portion of the award ($2,149,750). In upholding the $2,430,600 portion of the award for wrongful termination, the federal court explicitly rejected Countrywide's position that an at-will employee cannot state a claim for wrongful termination on the ground that, where there is an arbitration agreement governing employment disputes, the employee may only be terminated for just cause. Instead, the district court found that the arbitrator (a former United States Magistrate Judge) was well within his authority to rule that the client had been wrongfully terminated because the termination of his employment was without just cause.

On February 28, 2007, an arbitration panel awarded our client, Nancy Thomas, $420,000 against Merrill Lynch, Pierce, Fenner & Smith Inc. for gender discrimination in compensation and retaliation. Ms. Thomas was a financial consultant at Merrill Lynch for almost 18 years. After 36 days of hearings and testimony from 22 witnesses, the arbitrators awarded Ms. Thomas $320,000 in lost compensation damages and interest for Merrill Lynch’s gender discrimination in the distribution of client accounts in violation of Title VII, the Equal Pay Act, and the New York State and New York City Human Rights Laws, based in part on statistical evidence. The arbitrators also awarded Ms. Thomas $100,000 in emotional distress damages for Merrill Lynch’s retaliation against her for her complaints about gender discrimination, including her being one of the named class plaintiffs in the Cremin v. Merrill Lynch class action. The arbitrators also awarded attorneys’ fees and costs, which the parties then agreed were $1,000,000.

Click here to read the arbitrators’ Decision And Award.

In 2004, Leigh Short, a former sales person on Deutsche Bank's Asian and Australian Equities Sales desks, filed a Charge of Discrimination with the United States Equal Employment Opportunity Commission (EEOC) alleging gender discrimination. On August 23, 2006, the EEOC issued a Letter of Determination finding that "there is reasonable cause to believe that Respondent discriminated against Charging Party and a class of similarly situated females on its Asian and Australian Sales desks, in violation of Title VII. This determination is final."

Ms. Leibowitz was a professor at Cornell's School of Industrial & Labor Relations. In 2002, Cornell terminated her employment. Ms. Leibowitz commenced an action in the United States District Court for the Southern District of New York, alleging gender and age discrimination, violation of the Equal Pay Act, and breach of her tenure contract. The District Court dismissed all of Ms. Leibowitz's claims. We appealed the District Court's decision to the United States Court of Appeals for the Second Circuit. David Marek successfully argued the appeal, and on April 21, 2006, the Second Circuit reversed the Southern District's decision, reinstating all of Ms. Leibowitz's employment-related claims.

In a November 22, 2005 Opinion and Order of Judge Richard F. Braun of the New York State Supreme Court, the Court denied The Salvation Army's motion to dismiss as to five of six discrimination and retaliation claims of our client, Zachary Logan. Mr. Logan, who counseled victims of the World Trade Center attack, was employed by The Salvation Army as a senior caseworker. His employment was terminated on January 11, 2002. He asserted claims of discrimination in connection with hostile treatment toward him due to his sexual orientation and religion. The Salvation Army sought to dismiss the claims on the grounds that as a religious organization it was exempt from liability for violations of anti-discrimination statutes. In a strongly worded rejection of The Salvation Army's position, the Court stated the "limited exemptions for religious organizations are a far cry from letting them harass their employees and treat the employees in an odiously discriminatory manner during employment . . . ." The Court concluded that Mr. Logan had set forth valid claims and the matter should proceed.

On October 26, 2005, a panel of three arbitrators from the New York Stock Exchange awarded $1,650,385.50 in compensatory damages and $290,000.00 in attorneys' fees to Robert J. Ostrowski, a former retail broker who had worked for over 41 years for Prudential Securities, Inc. in Wilkes-Barre, Pennsylvania. In addition, the arbitrators ordered that Mr. Ostrowski's Form U-5 be amended to state that he was terminated "without cause on July 25, 2001." The panel also ordered Prudential to pay the hearing costs of $15,000.00 and Mr. Ostrowski's $1,000.00 filing fee.

Mr. Ostrowski sued Prudential for wrongful termination and breach of contract by withholding the value of his deferred compensation -- principally Master Share benefits -- worth approximately $1,300,000 when the claim was filed. Mr. Ostrowski also filed claims for violation of the Pennsylvania Wage Payment and Collection Act and for defamation regarding the reason for termination that Prudential originally placed on his Form U-5.

This appears to be the first successful employee litigation against Prudential for wrongful withholding of an employee's MasterShare monies.

Mr. Ostrowski worked for Prudential as a retail broker in its Wilkes-Barre, Pennsylvania office from 1960 until Prudential terminated his employment on July 25, 2001. In recognition of Mr. Ostrowski's outstanding performance and substantial client base, Prudential endowed Mr. Ostrowski with numerous awards. Most notably, Prudential appointed Mr. Ostrowski to its prestigious Chairman's Council for 25 consecutive years. Mr. Ostrowski was one of only eleven retail brokers in Prudential's history to accomplish this and he was honored for the achievement in Paris, France just weeks before Prudential notified him that his employment was being terminated "for cause" due to an alleged unauthorized trade.

The hearings in this matter were held in Philadelphia, Pennsylvania and lasted for seven days.

Read the official NYSE decision.

On April 6, 2005, a jury of six women and two men awarded $2,241,009 in back pay, $6,863,100 in front pay, and $20,169,081 in punitive damages to Laura Zubulake, a former institutional equities saleswoman at UBS. Ms. Zubulake sued UBS for discriminating against her on the basis of her sex, and for retaliating against her by firing her after she complained. Ms. Zubulake was employed by UBS from August 1999 through October 2001. For 2000, her last full year of employment, she earned total compensation of $650,000. Among the noteworthy aspects of the verdict is the apparent recognition by the jury - through its award of almost $7 million in front pay - that UBS's mistreatment of Ms. Zubulake significantly hindered her prospects for future employment. In awarding punitive damages of over $20 million, the jury determined that UBS acted with malice or reckless disregard of Ms. Zubulake's rights.



Click here to read the closing arguments presented by Ms. Zubulake's counsel to the jury.


Click here to read the presentation Ms. Zubulake's counsel made in which he asked the jury for a punitive damages verdict.

This sex discrimination and retaliation case has generated substantial attention in the general and legal press, particularly because of the groundbreaking rulings the United States District Court in New York has made regarding the discovery of e-mail evidence and the obligations companies have to preserve, in connection with lawsuits, electronically stored documents. The Federal Court has in fact issued five separate, highly significant decisions with respect to this case. The following are links to each of the five decisions:

Zubulake I

Zubulake II

Zubulake III

Zubulake IV

Zubulake V

The following are links to articles that have appeared in the New York Law Journal regarding this case:

• UBS Warburg Sanctioned for Destroying E-Mails in Discrimination Suit (July 21, 2004)
  
  
  Read it here


• Bank Negligent for Allowing Destruction of E-mail Evidence (October 24, 2003)
  
  Read it here


• Electronic Discovery: N.Y. Judge Juggles Cost Criteria (July 24, 2003)
  
  Read it here


• New Standards for Cost Shifting Proposed in Electronic Discovery (May 14, 2003)
  
  Read it here

On July 9, 2004, an arbitration panel awarded our client, Olga Emanuel, $906,719 against Prudential Insurance Co. of America for the wrongful discharge of her employment. Ms. Emanuel was a top performing portfolio manager of proprietary bond funds for Prudential from March 1987 until January 1997. She was widely respected both within and outside Prudential for her commitment to obtaining the best execution and, consistently a top quartile return, on behalf of Prudential. Ms. Emanuel's commitment to obtaining the best execution and best return resulted in consistent top quartile performance in managing in excess of $3 billion in assets. In May 1996, Ms. Emanuel provided information to an in-house Prudential attorney in support of an allegation of discrimination. In August 1996, Ms. Emanuel was improperly accused of wrongdoing. After conducting an investigation, Prudential terminated Ms. Emanuel's employment on January 13, 1997 at the age of 59. We filed claims on Ms. Emanuel's behalf for wrongful discharge, age discrimination, retaliation, defamation, failure to pay severance and a request that the Panel order an amendment of defamatory language appearing on Ms. Emanuel's Form U-5. After hearing testimony over 28 days, the panel awarded Ms. Emanuel $450,000 in compensatory damages, $306,469 in interest, $150,000 in attorneys fees and $250 toward repayment of the NASD filing fee. The arbitrators also directed Prudential to pay forum fees of $63,200 to the NASD constituting all of the arbitrators' fees in the arbitration. The panel also sought to restore Ms. Emanuel's professional reputation by recommending the amendment of her Form U-5 Uniform Termination Notice For Securities Industry Registration. Read the decision