05-4363-cv Rosenberg v. Metlife, Inc.

1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3

4 August Term 2005

5 (Argued: April 21, 2006 Decided: June 14, 2007)

6 Docket No. 05-4363-cv

7 -------------------------------------------------------x

8 CHASKIE J. ROSENBERG,

9 Plaintiff-Appellant,

10 -- v. --

11 METLIFE, INC., METROPOLITAN LIFE INSURANCE COMPANY, 12 and METLIFE SECURITIES, INC.,

13 Defendants-Appellees.

14 -------------------------------------------------------x

15 B e f o r e : JACOBS, Chief Judge, WALKER and WALLACE, 16 Circuit Judges.*

17 Appeal from a judgment of the United States District Court

18 for the Southern District of New York (Jed S. Rakoff, Judge)

19 granting summary judgment to the defendants on the plaintiff’s

20 libel claim. On appeal, the plaintiff argues that the district

21 court erred in holding that under New York law, statements made

22 on an NASD Form U-5 are subject to an absolute privilege. We

* The Honorable J. Clifford Wallace, United States Court of Appeals for the Ninth Circuit, sitting by designation. 1 certified the question to the New York Court of Appeals and

2 received an answer.

3 AFFIRMED.

4 MAURICE W. HELLER (Jacob W. Heller 5 and Allen M. Eisenberg, on the 6 brief), Heller Horowitz & Feit, 7 P.C., New York, New York, for 8 Plaintiff-Appellant. 9 10 STEVEN E. OBUS (Steven Yarusinsky, 11 on the brief), Proskauer Rose LLP, 12 Newark, New Jersey, for Defendants- 13 Appellees. 14 15 PER CURIAM:

16 The National Association of Securities Dealers (“NASD”)

17 requires its members to file a termination form (“Form U-5")

18 whenever they terminate a registered employee. The form contains

19 the employer’s statement of the reasons for the termination, and

20 the NASD provides the form to any member firm upon request. This

21 case presents the question of whether an employee may base an

22 action for libel on statements on a Form U-5.

23 In a July 19, 2005 judgment of the United States District

24 Court for the Southern District of New York (Jed S. Rakoff,

25 Judge), the district court held that such statements are

26 absolutely privileged and granted summary judgment to the

27 defendants. We certified to the New York Court of Appeals the

28 question of whether such statements are subject to an absolute or

29 qualified privilege. See Rosenberg v. Metlife, Inc.,

(2d Cir. 2006) [hereinafter Rosenberg I]. Because the New

-2- 1 York Court of Appeals has held that such statements are

2 absolutely privileged, see Rosenberg v. Metlife, Inc., – N.E.2d

3 –,

(2007) [hereinafter Rosenberg II], we affirm

4 the judgment of the district court.

5 BACKGROUND

6 Plaintiff-appellant Chaskie Rosenberg began his employment

7 at defendant-appellee MetLife, Inc. in 1997. After a series of

8 audits, MetLife terminated Rosenberg in 2003. Under its

9 obligations as an NASD member, MetLife, Inc. filed a Form U-5

10 with the NASD that gave the following reason for termination:

11 AN INTERNAL REVIEW DISCLOSED MR[.] ROSENBERG APPEARED 12 TO HAVE VIOLATED COMPANY POLICIES AND PROCEDURES 13 INVOLVING SPECULATIVE INSURANCE SALES AND POSSIBLE 14 ACCESSORY TO MONEY LAUNDERING VIOLATIONS. 15 16 Unhappy with this statement, Rosenberg brought an action for

17 employment discrimination, libel, fraudulent misrepresentation,

18 and breach of contract against MetLife, Inc., Metropolitan Life

19 Insurance Company, and MetLife Securities, Inc. (collectively

20 “MetLife”). The district court granted summary judgment to

21 MetLife on Rosenberg’s libel claim, holding that under New York

22 law, statements made on a Form U-5 are absolutely privileged.

23 Rosenberg’s remaining claims were either dismissed or rejected by

24 the jury at trial.

25 Rosenberg timely appealed, arguing that the district court

26 erred in concluding that New York law affords an absolute

27 privilege to statements on a Form U-5. Because we concluded that

-3- 1 this state law issue was important, unsettled, and determinative

2 of the appeal, we certified the following question to the New

3 York Court of Appeals:

4 Are statements made by an employer on an NASD employee 5 termination notice (“Form U-5”) subject to an absolute 6 or a qualified privilege in a suit for defamation? 7 8 Rosenberg I,

.

9 The New York Court of Appeals accepted the question and

10 thereafter held that statements on a Form U-5 are absolutely

11 privileged in a suit for defamation. Rosenberg II,

368. We now dispose of this appeal in light of that decision.

13 DISCUSSION

14 We review a district court’s grant of summary judgment de

15 novo. Guilbert v. Gardner,

(2d Cir. 2007).

16 Summary judgment may be granted when there is no genuine issue as

17 to any material fact and the moving party is entitled to a

18 judgment as a matter of law. Fed. R. Civ. P. 56(c).

19 It is now clear that the statements on which Rosenberg bases

20 his libel claim are absolutely privileged under New York law.

21 See Rosenberg II,

. Absolute privilege shields

22 the speaker or writer from liability for an otherwise defamatory

23 statement, regardless of the speaker or writer’s motive in making

24 the statement. Park Knoll Assocs. v. Schmidt,

,

25 183-84,

(1983). Rosenberg advances no

-4- 1 argument that the statements might escape the privilege.1

2 Because a libel action on an absolutely privileged statement is

3 barred as a matter of New York law, see, e.g., Cicconi v. McGinn,

4 Smith & Co.,

(App. Div. 2005), the

5 district court properly granted summary judgment to MetLife.

6 CONCLUSION

7 For the foregoing reasons, the judgment of the district

8 court is AFFIRMED.

1 1 Consequently, we need not decide if there are circumstances in 2 which statements on a Form U-5 are not absolutely privileged 3 under Rosenberg II. We note, however, that in the context of 4 judicial or quasi-judicial proceedings, statements made by 5 parties, attorneys, and witnesses are absolutely privileged only 6 “so long as they are material and pertinent to the issue to be 7 resolved in the proceeding.” Sinrod v. Stone,

, 8 274 (App. Div. 2005); see also Rosenberg II,

; cf. 9 also Wiener v. Weintraub,

,

, 10 332-33 (1968) (concluding that statements in a letter to a 11 grievance committee of the bar association were absolutely 12 privileged because “the statement . . . was material and 13 pertinent to the matter in issue”). -5-