Faced with the prospect of criminal indictment premised on the actions of two employees, a company demanded that those employees explain themselves under the threat of termination. They refused, were fired, and in this suit seek to recover employment benefits they lost by termination. They appeal from the judgment of the United States District Court for the Southern District of New York (Oetken, J.), dismissing their complaint on summary judgment. We agree with the district court that the defendant company — Marsh (he., Marsh & McLennan Cos., Marsh Inc., Marsh USA Inc., and Marsh Global Broking Inc.) — had cause to fire William Gil-man and Edward McNenney, Jr., for refusal to comply with its reasonable order. Accordingly, we affirm.
BACKGROUND
In April 2004, the New York Attorney General (the “AG”) began investigating “contingent commission” arrangements by which insurance brokers were thought to be steering clients to particular insurance carriers. Marsh, as one of the brokers under investigation, retained outside counsel, Davis Polk & Wardwell LLP, to conduct an internal investigation of the AG’s allegations. The internal investigation included interviews with Gilman and McNenney in the spring and summer of 2004.
The focus of the AG investigation shifted, in September 2004, to an alleged bid-rigging scheme involving Marsh and sever
The fallout from the civil complaint was swift and severe. Marsh’s stock price plunged, a raft of private civil suits were filed, and Marsh’s directors, clients, and shareholders demanded answers to the bid-rigging allegations. Marsh responded by expanding the ongoing internal investigation; on October 19, 2004, Marsh suspended Gilman and McNenney (with pay). More or less at the same time, Marsh’s counsel'asked Gilman and McNenney to sit for interviews and warned that failure to comply would result in termination. Gil-man was asked to interview with a lawyer from Davis Polk as soon as possible. McNenney alleges that he was asked to submit to an interview with a lawyer from the AG and that he was told to do so without presence of counsel. (Marsh vigorously denies that McNenney was asked to interview with the AG, let alone to do so without counsel.)
On October 25, 2004, the CEO of Marsh’s parent company resigned and was replaced by Michael Cherkasky. The same day, Cherkasky met with Eliot Spitzer, then-Attorney General of New York, to discuss the investigation. Gilman and McNenney contend that the upshot of the meeting was that the AG would forgo criminal prosecution of Marsh itself in exchange for its cooperation with the AG’s investigation, including waivers of attorney-client privilege and work-product immunity for information developed in the (expanding) internal investigation. That day, an AG press release announced that a civil proceeding would suffice to punish and reform Marsh, and that criminal prosecutions arising out of the alleged bid-rigging scheme would be limited to individuals. This press release was widely understood to mean the AG would indict Gilman and McNenney — as it eventually did.
By the time of the October 25 meeting and agreement between Cherkasky and Spitzer, neither Gilman nor McNenney had complied with Marsh’s counsel’s requests that they sit for interviews. On October 27, 2004, McNenney’s attorney conveyed McNenney’s refusal to Davis Polk; Marsh fired him the next day. On October 28, 2004, Gilman’s attorney scheduled an interview for his client on November 2. But on November 1, 2004, Gilman submitted paperwork purporting to effectuate an early retirement; later that day, his attorney conveyed Gilman’s refusal to be interviewed. Marsh fired Gilman the next day, and did not accept Gilman’s purported retirement.
As Marsh employees, Gilman and McNenney were eligible for some valuable employment benefits. Under Marsh’s Stock Award Plans, they received grants of stock options, stock bonus units, and/or deferred stock units, some of which they could have been entitled to upon termination if (for example) they had retired or were fired without cause. If, however, they were terminated “for cause,” any unvested stock benefits were forfeited. Under Marsh’s ERISA-governed Severance Pay Plan, Gilman and McNenney were entitled to severance if, inter alia, they remained in good standing with Marsh on their last day of work and if their employment terminated (i) because they lacked job skills, or (n) in connection with a restructuring, or (iii) because Marsh had eliminated their position. An otherwise-eligible employee whose
As relevant here, Gilman and McNenney sued Marsh to obtain the lost employment benefits, alleging violations of ERISA, breach of contract, and breach of the implied covenant of good faith and fair dealing. The district court granted summary judgment in favor of Marsh, concluding that the interview requests were reasonable, that Gilman’s and McNenney’s refusal to sit for interviews gave Marsh cause for termination, that Marsh did in fact fire them for cause (and did not breach the implied covenant), and that Gilman’s purported retirement was ineffective. Gilman and McNenney appeal.
DISCUSSION
We review the grant of summary judgment de novo, construe the evidence in the light most favorable to the non-moving party, and draw all reasonable inferences in its favor. Noll v. Int’l Bus. Mach. Corp.,
The first question is whether the demand that Gilman and McNenney submit to interviews was reasonable as a matter of law. If so, Marsh had cause to fire them and deny them employment benefits. If not, Gilman’s and McNenney’s claims against Marsh for benefits should have withstood summary judgment. We conclude that the interview demands were reasonable as a matter of law because at the time they were made, Gilman and McNenney were Marsh employees who had been implicated in an alleged criminal conspiracy for acts that were within the scope of employment and that imperiled the company. The second question is whether there is a triable issue of fact as to whether Marsh fired them for cause. We conclude that there is not and reject the argument that Gilman and McNenney were let go routinely as part of a reduction in force and the argument that Gilman could not be fired because he had preemptively resigned. Finally, we reject Gilman’s and McNenney’s contention that, in light of Marsh’s cooperation with the AG, Marsh’s requirement that they answer potentially incriminating questions amounted to state action, and was thus unreasonable. Accordingly, Marsh had cause to fire them, as it did, and Gilman and McNenney are entitled to none of the employment benefits they seek.
I
Under Delaware law, which governs Marsh’s employment contracts with Gilman and McNenney, “cause” for termination includes the refusal to “obey a direct, unequivocal, reasonable order of the employer.” Unemployment Ins. Appeal Bd. v. Martin,
When Gilman and McNenney were named as co-conspirators in a criminal bid-rigging scheme for their conduct as Marsh employees, it was obvious (as Gilman and McNenney themselves affirmatively argue) that the AG intended to prosecute them criminally. At that time, Marsh had sufficient basis to act on the allegations, made under oath in open court, and would have had cause to terminate Gilman and McNenney, regardless of the ultimate resolution of the allegations. See Smallwood v. Allied Waste N. Am., Inc.,
Marsh was presumptively entitled to seek information from its own employees about suspicions of on-the-job criminal conduct. Marsh could take measures to protect its standing with investors, clients, employees, and regulators. Marsh also had a duty to its shareholders to investigate any potentially criminal conduct by its employees that could harm the company. See, e.g., In re Caremark Int’l Inc. Derivative Litig.,
Marsh’s demands placed Gilman and McNenney in the tough position of choosing between employment and incrimination (assuming of course the truth of the allegations). But though Gilman and McNenney “may have possessed the personal rights to [not sit for interviews], that does not immunize [them] from all collateral consequences that come from [those] act[s],” including leaving Marsh “with no practical option other than to remove [them].” Hollinger Int’l, Inc, v. Black,
Gilman and McNenney argue that the October interview requests were unreasonable because Marsh had already interviewed them earlier in the year. This is nonsense. In the spring and summer of 2004, the AG was investigating potential civil infractions involving insurance brokers steering clients to certain insurance carriers. Come September, however, the AG shifted focus to a criminal bid-rigging scheme. Then, in mid-October, Gilman and McNenney were named as co-conspirators in the criminal conspiracy and the AG filed a civil complaint against Marsh in which Gilman and McNenney were named. Circumstances had altered and stakes were raised. There is no reason to believe the October interviews would have been dupli-cative of the earlier interviews; and even if all Marsh sought was updated reassurance, the demand for interviews would have been reasonable. No doctrine limits a company’s inquiries as to allegations of employee misconduct.
Given the circumstances, Marsh’s demand that Gilman and McNenney explain themselves in an interview under the penalty of termination was unassailable, even routine. It did what any other company would do, and (arguably) what any company should do. Marsh’s interview demands were reasonable and it had cause to fire Gilman and McNenney for refusing to comply.
II
There is no genuine issue of material fact that Marsh fired Gilman and McNenney for their refusal to cooperate. It was objectively plain (and no witness has denied being aware) that the failure of Gilman or McNenney to comply with the interview requests would result in termination. Therefore, it was no surprise that each was fired the day after Marsh was notified of his refusal. Gilman and MeNen-ney nevertheless posit that they may have been fired as part of a reduction-in-force or restructuring, which (if so) would entitle them to severance. Gilman and McNenney fail to proffer evidence in support, and certainly create no triable issue of fact on this question.
Gilman also argues that he successfully pulled off what disgruntled employees eventually tell their employers: “You can’t fire me; I quit.” However, Delaware courts “read a contract as a whole and ... will give each provision and term effect, so as not to render any part of the contract ... meaningless or illusory.” Osborn ex rel. Osborn v. Kemp,
There is no genuine dispute that Gilman filed his retirement papers in direct response to Marsh’s (reasonable) interview request, or that Gilman would be fired immediately if he did not comply with Marsh’s (reasonable) interview request. Marsh’s internal investigators tried for weeks to schedule Gilman for an interview; they were finally able to pin him down for November 2; and just the day before, Gilman faxed retirement paperwork to Marsh. Coincidence is not that convenient.
For the same reasons, Gilman’s and McNenney’s argument that Marsh breached its duty of good faith and fair dealing also fails. Delaware law implies a
Ill
Gilman and McNenney argue that Marsh’s interview demands constitute state action that infringed their right against self-incrimination. This is “the legal equivalent of the ‘Hail Mary pass’ in football.” In re Lionel Corp.,
The claim that Marsh was a state actor leans heavily on United States v. Stein,
Stein has no bearing on this case. Marsh had good institutional reasons for requiring Gilman and McNenney to sit for interviews or else lose their jobs: the company’s stock price was sinking and its clients, directors, investors, and regulators were demanding answers about the allegations. There is no evidence that the AG “forced” Marsh to demand interviews, “intervened” in Marsh’s decisionmaking, “steered” Marsh to request interviews, or “supervised” the interview requests. Nor is there evidence that the nature and scope of the pending interviews were framed by the government, or changed after Cherkasky’s October 25 meeting with Spitzer. The ex
Even if, as McNenney contends, Davis Polk sought to interview him without counsel and with the AG present, that request occurred well before October 25, and McNenney adduced no evidence that Marsh’s request for an interview arose out of pressure or coercion from the AG. And Marsh, which already had cause to fire McNenney, could presumably put additional conditions on its interview request anyway, as it still gave McNenney fundamentally the same choice to explain himself or be fired.
Gilman and McNenney invite us to consider that the occasion for the corporate investigation was a criminal initiative by government, and that a likely use of the internal investigation was that Marsh would offer up its findings (together with the employees’ testimony) in the nature of a sacrifice to an angry prosecutor. No doubt, Marsh was compelled by circumstances to conduct an investigation (with expectation that any privileges attached to it would be waived) and that one mighty circumstance was a possible prosecution of the firm. But in the ordinary course, allegations of serious wrongdoing would provoke such an investigation, whether or not the allegations were made by prosecutors and whether or not the company itself was at risk of prosecution. The interests of prudent directors alone would justify or compel such a measure. Stein is properly distinguished because (among other things) KPMG had no institutional interest in stripping its employees of their chosen defense counsel and KPMG was forced to abandon a longstanding policy that it had decided to continue; it was therefore found that government compulsion was the “but for” reason for the new Fees Policy.
This is not a Stein case. This case is more nearly an analog of D.L. Cromwell Investments, Inc., v. NASD Regulation, Inc.,
Gilman and McNenney urge that we adopt, in effect, this categorical rule: acts that are taken by a private company in response to government action, and that have as one goal obtaining better treatment from the government, amount to state action. But a company is not prohibited from cooperating, and typically has supremely reasonable, independent interests for conducting an internal investigation and for cooperating with a governmental investigation, even when employees suspected of crime end up jettisoned. A rule that deems all such companies to be government actors would be incompatible with corporate governance and modern regulation. See Solomon,
For the foregoing reasons, we affirm.
Notes
. We also affirm the district court's dismissal of Gilman and McNenney’s claims for (i) abuse of process against Marsh and the CEO of Marsh, Michael Cherkasky, and (ii) misconduct against Cherkasky as an attorney, in a summary order filed simultaneously with this Opinion.
. The Severance Plan defines “cause” as including "insubordination,” “willful misconduct,” "failure to comply with [Marsh] policies or guidelines,” and "commission of an act rising to the level of a crime.” The Stock Award Plans governing stock bonus units and deferred stock units define “cause” as including "willful misconduct in the performance of the employee's duties,” “continued failure after notice, or refusal, to perform the duties of the employee,” "breach of fiduciary duty or breach of trust,” and “any other action likely to bring substantial discredit to [Marsh].” To the extent this footnote (or any other record citation in this opinion) is drawn from the sealed appendix, the sealed material that is referenced is hereby deemed unsealed.