Rosenberg v. Metlife, Inc., No. 05-4363 (2d Cir. 2007)

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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 6 Decided: June 14, 2007) Docket No. 05-4363-cv 7 -------------------------------------------------------x 8 CHASKIE J. ROSENBERG, 9 Plaintiff-Appellant, 10 11 12 -- v. -METLIFE, INC., METROPOLITAN LIFE INSURANCE COMPANY, and METLIFE SECURITIES, INC., 13 Defendants-Appellees. 14 -------------------------------------------------------x 15 16 B e f o r e : 17 JACOBS, Chief Judge, WALKER and WALLACE, Circuit Judges.* 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. 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. * On appeal, the plaintiff argues that the district The Honorable J. Clifford Wallace, United States Court of Appeals for the Ninth Circuit, sitting by designation. We 1 certified the question to the New York Court of Appeals and 2 received an answer. 3 AFFIRMED. 4 5 6 7 8 9 10 11 12 13 14 15 MAURICE W. HELLER (Jacob W. Heller and Allen M. Eisenberg, on the brief), Heller Horowitz & Feit, P.C., New York, New York, for Plaintiff-Appellant. STEVEN E. OBUS (Steven Yarusinsky, on the brief), Proskauer Rose LLP, Newark, New Jersey, for DefendantsAppellees. 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. 19 the employer s statement of the reasons for the termination, and 20 the NASD provides the form to any member firm upon request. 21 case presents the question of whether an employee may base an 22 action for libel on statements on a Form U-5. 23 The form contains This 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. 28 question of whether such statements are subject to an absolute or 29 qualified privilege. 30 122 (2d Cir. 2006) [hereinafter Rosenberg I]. We certified to the New York Court of Appeals the See Rosenberg v. Metlife, Inc., 453 F.3d -2- Because the New 1 York Court of Appeals has held that such statements are 2 absolutely privileged, see Rosenberg v. Metlife, Inc., N.E.2d 3 , 8 N.Y.3d 359, 368 (2007) [hereinafter Rosenberg II], we affirm 4 the judgment of the district court. BACKGROUND 5 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. 9 obligations as an NASD member, MetLife, Inc. filed a Form U-5 10 with the NASD that gave the following reason for termination: Under its 11 12 13 14 15 16 AN INTERNAL REVIEW DISCLOSED MR[.] ROSENBERG APPEARED TO HAVE VIOLATED COMPANY POLICIES AND PROCEDURES INVOLVING SPECULATIVE INSURANCE SALES AND POSSIBLE ACCESSORY TO MONEY LAUNDERING VIOLATIONS. 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 ). 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 Unhappy with this statement, Rosenberg brought an action for The district court granted summary judgment to 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. -3- Because we concluded that 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 5 6 7 8 Are statements made by an employer on an NASD employee termination notice ( Form U-5 ) subject to an absolute or a qualified privilege in a suit for defamation? Rosenberg I, 453 F.3d at 124, 128-29. 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. 12 368. We now dispose of this appeal in light of that decision. DISCUSSION 13 14 Rosenberg II, 8 N.Y.3d at We review a district court s grant of summary judgment de 15 novo. 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. 19 Guilbert v. Gardner, 480 F.3d 140, 145 (2d Cir. 2007). Fed. R. Civ. P. 56(c). 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, 8 N.Y.3d at 368. 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. 25 183-84, 59 N.Y.2d 205, 208-09 (1983). Absolute privilege shields Park Knoll Assocs. v. Schmidt, 451 N.E.2d 182, -4- Rosenberg advances no 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., 808 N.Y.S.2d 604, 606-08 (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 1 2 3 4 5 6 7 8 9 10 11 12 13 court is AFFIRMED. 1 Consequently, we need not decide if there are circumstances in which statements on a Form U-5 are not absolutely privileged under Rosenberg II. We note, however, that in the context of judicial or quasi-judicial proceedings, statements made by parties, attorneys, and witnesses are absolutely privileged only so long as they are material and pertinent to the issue to be resolved in the proceeding. Sinrod v. Stone, 799 N.Y.S.2d 273, 274 (App. Div. 2005); see also Rosenberg II, 8 N.Y.3d at 365; cf. also Wiener v. Weintraub, 239 N.E.2d 540, 541, 22 N.Y.2d 330, 332-33 (1968) (concluding that statements in a letter to a grievance committee of the bar association were absolutely privileged because the statement . . . was material and pertinent to the matter in issue ). -5-

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