Gilman v. Marsh & McLennan Companies, Inc.
868 F. Supp. 2d 118
S.D.N.Y.2012Background
- This action was filed October 27, 2010; SAC amended October 11, 2011, asserting nine causes of action across multiple theories.
- Defendants Marsh & McLennan Companies, Inc. and related entities and Cherkasky moved to dismiss the SAC in October 2011.
- SAC centers on Marsh’s contingent commissions investigation by NY Attorney General Spitzer, a civil settlement, and alleged implications for Gilman and McNenney.
- Plaintiffs allege prosecutors’ actions were induced by Marsh/ MMC through facilitation of witnesses and targeted prosecutions, leading to indictments and convictions later vacated.
- Plaintiffs seek relief including ERISA, contract, wage-and-hour (NYLL), and quasi-contract theories tied to Marsh severance and stock award plans.
- Court's resolution: grant in part and deny in part the motion to dismiss, with several claims dismissed with prejudice and others proceeding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the SAC plausibly alleges malicious prosecution | Gilman/McNenney allege Defendants induced prosecution | Defendants did not file charges; AG acted independently | Merits of claim dismissed for failure to plausibly allege induction and lack of probable cause |
| Whether the SAC plausibly alleges abuse of process | Defendants improperly used process post-indictment | Abuse must be after process issued; pre-indictment conduct not actionable | Dismissed; no plausible post-process abuse shown |
| Whether § 487 misconduct claim survives | Cherkasky, as an attorney, engaged in deceit/collusion | Cherkasky acted as corporate leader, not as attorney | Dismissed; § 487 claim fails to show attorney-duty wrongdoing |
| ERISA violations relating to severance plan | Marsh denied severance pay in violation of ERISA benefits | Administrative exhaustion required; but some futility exceptions apply | Denied with respect to ERISA § 502(a)(1)(B) claim; exhaustion not required due to futility theory |
| Breach of contract relating to Marsh Severance Plan | Severance plan constitutes contract; plaintiffs entitled to severance | ERISA preempts contract claim; invalid under plan’s chosen law | Dismissed; contract claim preempted by ERISA; no non-ERISA contract alleged |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (plausibility pleading standard)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (plausibility standard requires more than mere speculation)
- Cook v. Sheldon, 41 F.3d 73 (2d Cir. 1994) (abuse of process requires post-issuance objective)
- Parkin v. Cornell Univ., Inc., 78 N.Y.2d 523 (N.Y. 1991) (abuse-of-process discussion and timing considerations)
- People v. Jackson, 65 A.D.3d 1164 (2d Dep’t 2009) (probable cause and accomplice testimony sufficiency)