United States District Court, D. New Jersey
CRAIG D. PRICE, Plaintiff,
UBS FINANCIAL SERVICES, INC., Defendant.
WILLIAM J. MARTINI, U.S.D.J.
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
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
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.
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.
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
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.
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.
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).
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. ...