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Littman v. Witter2/14/2001
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 8, 2000
Plaintiff, Jonathan K. Littman, appeals from an order entered on August 6, 1999, compelling him "to arbitrate his claims against Defendants in the National Association of Security Dealers, Inc. ["NASD"] in accordance with the terms of the executed Form U-4" and dismissing his complaint, and from an order of September 14, 1999, denying his motion for reconsideration. Plaintiff's complaint alleged violations of the Conscientious Employee Protection Act ("CEPA"), N.J.S.A. 34:19-1 et seq. He asserts that "the reason for plaintiff's termination . . . was the result of plaintiff's refusal to participate in the 'Monopoly Game'" which is "nothing more than an unsophisticated company-wide policy of institutional tax fraud," resulting from a fabrication of expense receipts in exchange for cash.
Plaintiff argues that the trial court erred in dismissing the CEPA count because he "is only required to submit to arbitration those claims for which the NASD requires arbitration," that the NASD rules do not require litigation of statutory discrimination claims including CEPA claims, and that "even if CEPA claim is not a 'statutory employment discrimination claim[,]' is still not subject to arbitration." Hence, the principal issue before us, in plaintiff's words, "is whether a claim under [CEPA] is a 'statutory employment discrimination claim' as that phrase is defined by the [NASD]."
I.
For purposes of the defendants' "motion to compel arbitration," we must accept the following facts as asserted by plaintiff. Plaintiff was hired by defendant Morgan Stanley Dean Witter ("MSDW") as a financial advisor in 1997. He received "positive performance reviews" in 1997 and 1998, and was ranked "seventh (7th) nationally in his graduating class of one hundred forty seven." In fact, " e was even recruited [by MSDW] to give a speech . . . at the firm's next training class" for new broker dealers.
Plaintiff claims that in or about December 1988, he expressed concern to defendant Richard Less, MSDW's Fairfield branch manager, regarding "the legality of an employee bonus program called the 'Monopoly Game.'" Specifically, plaintiff questioned the fact "that the fabrication of expense receipts in exchange for cash was in violation of the federal tax code as he understood it." Less had allegedly been previously notified of the concern by Colleen McLaughlin, a sales assistant in the Fairfield office, "as early as September 1998." Plaintiff further contends that on or about December 7, 1998, he informed Less of his intention to marry McLaughlin and that Less responded by saying that plaintiff "could no longer work with McLaughlin." Plaintiff was terminated shortly thereafter, he says "in or about December of 1998," for "insubordination." At that time, plaintiff was informed that he would have to "turn over" his "book of clients" to MSDW. He claims that when he refused to do so, Less contacted the Fairfield Police who escorted plaintiff out of the building.
II.
"The NASD is a self-regulatory organization of securities brokers and dealers, as defined by 15 U.S.C.A. § 78c(a)(26), subject to regulation by the Securities and Exchange Commission ("SEC"). [See 15 U.S.C.A. § 78o-3 et seq.] See generally 15 U.S.C. § 78 et seq." Young v. Prudential Ins. Co. of Am., Inc., 297 N.J. Super. 605, 609 (App. Div.), certif. denied, 149 N.J. 408 (1997). The NASD Code of Arbitration Procedure has been promulgated by the NASD of which defendant MSDW is a member. Plaintiff was required to register with the NASD as a condition of employment. In so doing, he was required to sig
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