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Price v. UBS Financial Services Inc.

United States District Court, D. New Jersey

November 27, 2017

CRAIG D. PRICE, Plaintiff,
v.
UBS FINANCIAL SERVICES, INC., Defendant.

          OPINION

          WILLIAM J. MARTINI, U.S.D.J.

         Plaintiff Craig D. Price brings this action against UBS Financial Services, Inc. (“Defendant”), alleging claims of whistleblowing retaliation under the Wall Street Reform and Consumer Protection Act, 15 U.S.C. § 78u-6, and the Florida Whistleblower Act, Fla. Stat. § 448.102. This matter comes before the Court on Defendant's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). There was no oral argument. Fed.R.Civ.P. 78(b). For the reasons set forth below, Defendant's motion to dismiss is DENIED in part, and STAYED in part.

         I. BACKGROUND

         Plaintiff is a financial services professional with nearly 24 years of experience, 16 of which were spent under Defendant's employ. See Compl. ¶¶ 1, 4, ECF No. 1. At the time of his termination, Plaintiff held the title of Senior Vice President of Investments and Private Wealth Advisor in Defendant's Stuart, Florida office. See id. at ¶ 5. Defendant is a Delaware corporation, with its principal place of business in Weehawken, New Jersey, that provides, among other things, financial advisory services to high net worth individuals. See id. at ¶ 7.

         Plaintiff alleges that Defendant wrongfully terminated his employment in February 2016, in retaliation for his disclosure of a co-worker's illegal activity to Plaintiff's supervisors and then to the Financial Industry Regulatory Authority, Inc. (“FINRA”). See id. at ¶¶ 105-10. Plaintiff's Complaint asserts two causes of action:

(1) Count 1: retaliation in violation of the Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”), 15 U.S.C. § 78u-6, id. at ¶¶ 104-16;
(2) Count 2: retaliation in violation of the Florida Whistleblower Act (“FWA”), Fla. Stat. § 448.102, id. at ¶¶ 117-24.

         Plaintiff specifically alleges that he first internally disclosed the co-worker's fraudulent mismanagement of a client account to his branch manager and Defendant's “Complex manager” in April 2013. See id. at ¶¶ 38-53. In July 2014, as part of its investigation into the matter, FINRA deposed Plaintiff, at which time Plaintiff disclosed the same information from his previous meetings with Defendant's managers. See id. at ¶¶ 62-67. Plaintiff submits that he maintained a light work schedule during the fourth quarter of 2014, but that Defendant's retaliation began in earnest upon his return to full-time work in 2015. See id. at ¶¶ 72-73.

         Plaintiff alleges a pattern of harassment, which included the questioning of expenses and marketing events unlike anything he previously experienced. See id. at ¶¶ 73-77, 81- 85, 91-99. In August 2015, FINRA served Defendant with a complaint related to Plaintiff's trading in a penny stock named Cardero Resource Corp. (“Cardero”) on behalf of his client. See id. at 78-80. Plaintiff contends that Defendant received three previous complaints from that client, all of which were investigated and denied. See id. at ¶ 79. In November 2015, Defendant questioned Plaintiff in person for six hours about his history in recommending the Cardero stock. See id. at ¶¶ 87. Plaintiff previously submitted 13 Solicitation Approval Forms in connection with his Cardero trades and in compliance of Defendant's policies, all of which were approved. See id. at ¶ 90. On February 29, 2016, Defendant fired Plaintiff for various policy violations in relation to his trading in the Cardero stock. See id. at ¶¶ 100-02.

         Defendant now moves to dismiss both counts of the Complaint. Defendant first argues that Plaintiff does not meet the definition of “whistleblower” under the Dodd-Frank Act because he never provided information to “the Commission”-i.e., the Securities and Exchange Commission (“SEC”)-as required by statute. See Mem. of Law in Supp. of Def.'s Mot. (“Def.'s Mem.”) 8-17, ECF No. 11-2. Defendant further argues that both the Dodd-Frank and FWA claims must be dismissed because Plaintiff does not plead a sufficient causal link between his disclosures and his termination. See id. at 17-24.

         Plaintiff counters by arguing that he meets the definition of whistleblower as adopted by the SEC in its rulemaking authority over the Dodd-Frank Act. See Pl.'s Resp. in Opp'n to Def.'s Mot. (“Pl.'s Opp'n”) 12-21, ECF No. 17. Plaintiff further argues that he reported information to the SEC by reporting to FINRA, which resides under the SEC's jurisdiction. See id. at 21-23. Finally, he argues that he pleaded sufficient facts to demonstrate a causal link between his disclosures and his termination because he alleged a pattern of harassing behavior that began soon after his FINRA deposition and continued until his termination. See id. at 23-34. Defendant filed a reply, which largely reiterated its original arguments. See Reply in Supp. of Def.'s Mot., ECF No. 18.

         II. LEGAL STANDARD

         Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, if the plaintiff fails to state a claim upon which relief can be granted. The moving party bears the burden of showing that no claim has been stated. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In deciding a motion to dismiss under Rule 12(b)(6), a court must take all allegations in the complaint as true and view them in the light most favorable to the plaintiff. See Warth v. Seldin, 422 U.S. 490, 501 (1975); Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140 F.3d 478, 483 (3d Cir. 1998).

         Although a complaint need not contain detailed factual allegations, “a plaintiff's obligation to provide the ‘grounds' of his ‘entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the factual allegations must be sufficient to raise a plaintiff's right to relief above a speculative level, such that it is “plausible on its face.” See Id. at 570; see also Umland v. PLANCO Fin. Serv., Inc., 542 F.3d 59, 64 (3d Cir. 2008). A claim has “facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. ...


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