No Good Riddance from GFI In FINRA Good Leaver Arbitration

April 13, 2020

In a recent FINRA Arbitration, the dispute seems to have come down to whether a former associated person had left the employ of FINRA member firm GFI in a "good" manner. As dubious a pre-condition as being a "Good Leaver" may seem, it turned out to be no joke because allegedly some seven figures worth of common stock was not issued under the terms of an incentive pay package. What do your think would constitute being deemed a "Good Leaver" in order to qualify for the issuance of stock following separation from employment? After you've thought that through, go ahead and read about today's featured arbitration.

Case In Point

In a FINRA Arbitration Statement of Claim filed in February 2019, associated person Claimant Zullin asserted breach of contract; violation of New York Labor Law; breach of the covenant of good faith and fair dealing; and violation of FINRA Rules of Conduct. Claimant Zullin sought $4.8 million in compensatory damages, exemplary damages, punitive damages, interest, fees and expenses. In the Matter of the Arbitration Between Jason Todd Zullin, Claimant, v. GFI Securities, LLC GFI Group, Inc., Respondents (FINRA Arbitration Decision 19-00406). 

Respondents generally denied the allegations and asserted various affirmative defense. 

The FINRA Presiding Chairperson/Public Arbitrator and the other Public Arbitrator found Respondents jointly/severally liable and ordered them to pay to Claimant Zullin $99,229.50 in compensatory damages. The Non-Public Arbitrator Dissented from the 2:1 verdict. 

Bill Singer's Comment

Since I first entered the securities industry in 1982, I have read many arbitration decisions and dissents. I've appeared before arbitration panels as a lawyer for both public customers and the industry; and I've served as both an arbitrator and as the Chair on many panels. Against that background, I rank the Zullin FINRA Arbitration Decision among the lesser efforts that I have seen; however, the Zullin Dissent by Non-Public Arbitrator Antony Alexander Hilton ranks among the very, very best! 

Although the 2:1 Majority Decision passes FINRA's sniff test, the impressive nature of the  Dissent should have prompted the Majority to revise the final Decision in order to respond to some of the compelling objections raised by Non-Public Arbitrator Antony Alexander Hilton. Moreoverr, I can't criticize the Majority's rationale because the two arbitrators didn't pen one. What we are left to consider is a $4.8 million claim for which about $99,000 was awarded -- in and of itself, that disparity is not objectionable because many Claimants over-state their damages or fail to meet their full burdens of proof on behalf of all their claims; unfortunately, the Majority doesn't explain the rationale for its decision or the computation of its Award. 

Rather than summarize the Dissent, let me stand back and unleash its power in all its glory:


I disagree with my fellow Panelists as to the basis for dismissing in part the claims of Claimant. I find that in dismissing the claims, they have done so on a basis that falls outside the record. 

Under the facts presented, this action was brought by Claimant to recover monetary damages equal to the value of common stock which was not issued to him under a stock incentive plan provided by the Respondent. Claimant entered into a term employment agreement (made part of the record) which imposed various performance obligations for his employment and after his contract expired. In addition to this, Claimant and Respondent entered into a contract entitled a "JPI II Award Agreement" ("JPI Agreement"), which grants rights under an incentive program offered by Respondent to its employees, titled the "GFI Group Inc. 2008 Equity Incentive Plan" (as amended and restated effective Feb. 7, 2013) (the "Incentive Program").

The JPI Agreement provides for a grant, made on a specific date stated at the top of the agreement, of a specified amount of Restricted Stock Units (or "RSUs"); which is to mean that on a date specified, the Respondent confirms that it has earmarked and set aside from a pool a RSUs (which fund the Incentive Program) a specific amount of those RSUs, which Respondent guarantees will be available to distribute as common stock to Claimant on specified dates in the future. This is called the "Grant Date". At signing there is no actual right to the common shares, nor even a right to a scheduled distribution of those shares, it is simply a guarantee that, when the obligation to issue common shares to the employee springs, the amount of RSUs declared in the agreement shall be available and will be issued on the agreed-upon date of issuance (if the employee is employed by that date). 

On the effective Grant Date, pursuant to Section 3.1 of the JPI Agreement, there is a time clock of 5 years set postponing the obligation of Respondent to issue common shares to Claimant. At the end of this 5 year period (which is the 5th anniversary of the Grant Date), the obligation of the Respondent to issue common shares to Claimant springs, but on four equal annual issuance dates. In other words, on the 5th anniversary, there is no assignment of right to, or issuance of interest in, any common stock of Respondent (as represented by the RSUs), but the obligation by Respondent to issue common stock in equal amounts on specified dates. It is on those dates of issuance on which a right to the ownership and title over the number of common stock actually issued (equivalent to a fraction of the total number of RSUs granted under the agreement) transfers to Claimant. Put more succinctly, under the JPI Agreement, the Incentive Plan will issue stock to Claimant beginning on the 6th anniversary, and Claimant will not receive the full incentive award under the Plan until the 9 th anniversary (subject to Section 3 and 5 as will be explained). 

Section 3 makes clear that on the 5th anniversary, if Claimant remains employed by Respondent, issuance of common stock on the four annual dates are obligatory- Respondent cannot refuse to change its decision to issue common stock on those days as Claimant would have an absolute contractual right to be issued the common shares. However, pursuant to Section 5.2, should Claimant not be employed by the Respondent on the 5th anniversary of the grant, then all rights forfeit. As it is not contested as to whether Claimant was employed on the fifth anniversary, Section 5.2 does not apply and will not be addressed again. 

Relevant to these matters is Section 5.3, which provides as follows: "If the [Claimant's] employment with the [Respondent] . . . terminates for any reason after the [5th anniversary] and prior to [the date on which common stock was to issue to Claimant], the [right to be issued common stock] subject to this Agreement shall immediately be cancelled and the [Claimant] . . . shall forfeit any rights and interest in and with respect to [the common stock to be issued in the future] unless the [Respondent] determines, in its sole and absolute discretion, that the [Claimant] is a Good Leaver." This language is interpreted to state that if the Claimant's employment with Respondent has ended, and the date it has ended comes after the 5th anniversary, but before a date on which common stock was to issue, the Claimant no long has a right to receive, and the Respondent is no longer obligated to issue to Claimant, common stock except and unless a precondition is met-that Respondent determines Claimant is a "Good Leaver". Thus, based on this, issuance and right to receive common stock falls to the discretion of the Respondent, and there no longer exists an absolute right. According to testimony, that is how the program is customarily performed by the Respondent, and how Claimant has enjoyed such performance under previous issuances of common stock to him in the past. Thus, though there was some confusion based on the inartful use of terminology and construction of the clauses in reliance of the terminology, and some argument as to whether the terms as used may suggest some other form of performance obligation by Respondent, evidence of the method by which the Respondent uniformly performs under its incentive program, and how Claimant has received benefit under it previously, leads only to the conclusion that the foregoing is how this Incentive Program works, and how the JPI Agreements presented to the Panel are performed. 

It is undisputed that Claimant was employed by Respondent on the 5th anniversary. However, Claimant's term employment contract automatically terminated as a consequence of Claimant issuing a notice of non-renewal of his employment agreement (per its terms). Notwithstanding this, Respondent continued Claimant's employment on an at-will basis until he was subsequently terminated prior to the incentive awards issuance dates. Respondent did not subsequently issue common stock awards to Claimant on each of the subsequent issuance dates, and failed to communicate a reason for its non-performance-leading to these proceedings. 

Claimant's case in chief is to assert that he is entitled under the terms of the JPI Agreement to receive stock under the Incentive Program. The essence of his claims are Respondent either failed to perform as obligated under the JPI Agreement, or that Respondent has breached that agreement by deeming him a "non-Good Leaver". Nonperformance, according to Claimant, was either Respondent's failure to make a determination, or otherwise that Respondent failed to make issuance to him as a "Good Leaver". If, however, Respondent deemed him a "non-Good Leaver" and used such a determination as the basis for canceling his right to issuance of common stock, this breached the JPI Agreement as Claimant was not terminated for cause and otherwise complied with all of his contractual obligations to Respondent (including various noncompete and non-solicitation clauses in his employment agreement). 

In my opinion, my fellow Panelists have made this award on three factors I believe to be outside anything reflected in the record: (1) management always has the full right and discretion to define ambiguous clauses and terms in any way it prefers (such, as, for example, the definition of "Good Leaver"); (2) that the contract grants Respondent the right (under Section 5.4) to indefinitely withhold a determination as to whether or not Claimant is a "Good Leaver"; and (3) it is standard in the industry that when an employee leaves a position with a company, that employee automatically forfeits any right to any unpaid, unsettled or undistributed value of any kind. It is not just that I find these conclusions unsupported by the record, but I find that they completely disregard the nature of contracts as being a meeting of the minds of two parties, representing their collective understanding of what are the rights and obligations of the other. Furthermore, the Panel's determinations fail to consider the evidence (much of it offered by Respondent) as to how Respondent applies the term "Good Leaver", generally and under the JPI Agreement. It also does not consider the language of the JPI Agreement with regard to Respondent's obligations and actual discretions. I also find that the Panel's considerations may well have changed the terms of the agreements made part of the record-altering terms in one (the employment agreement) and inserting terms in another (the JPI Agreement and Incentive Plan) without any signed writing to permit these alterations. 

Generally, the JPI Agreement is somewhat inartfully constructed. It uses terms which have a common understanding and definition in the industry, and also have a plain language understanding or definition which parallels the industry understanding as well. Yet, the way in which the JPI Agreement makes use of the terms, confusion was created during the Arbitration-especially since neither the JPI Agreement nor the Incentive Program document provides a definition for the terms used. Notwithstanding the inartful construction of the JPI Agreement, based on the evidence presented, which includes testimony given by witnesses for both parties (including the Claimant himself), performance under the contract is as described earlier, above; to wit: while Claimant is an employee of Respondent, he has an absolute right to issuance of common stock on a set schedule that begins on the 6th anniversary of execution if still employed by Respondent. However, if his employment terminates for any reason before the 5th anniversary, all right to future issuances is forfeit without recourse; if his employment terminates after the 5th anniversary his right to future issuances forfeits except and unless Respondent deems him a "Good Leaver". To be clear, there is no absolute right to common stock by Claimant unless he is employed by Respondent at the time a scheduled date of issuance occurs (and then only to what was to be issued that day). 

Having resolved the process by which the JPI Agreement and the Incentive Program are performed, the issue of the "Good Leaver" label just mentioned must now be analyzed to determine if Respondent has breached its obligation under the JPI Agreement by either non-performance or having made a bad faith determination of Claimant's "Good Leaver" status. 

The label "Good Leaver" is not defined in the JPI Agreement or in the Incentive Program document, and the inartful means by which the JPI Agreement is constructed has left open, it seems, an ambiguity as to the extent by which Respondent may exercise discretion in defining the label and applying the label. Application of "Good Leaver" under the JPI Agreement turns entirely on Section 5.3 and 5.4 of the JPI Agreement. They make clear that if the Claimant, as a former employee, is deemed a "Good Leaver" by Respondent, then he shall be entitled to future issuance of Respondent's common stock-though Respondent retains the right to change its mind and deem him a "non-Good Leaver" if circumstances have changed to cause the change in his "Good Leaver" status. What is and is not a "Good Leaver" are a central issue. However, before analyzing how "Good Leaver" is intended to be used by the JPI Agreement, it must first be resolved as to whether Respondent was obligated to make such a determination and therefore failed to perform by withholding a determination. 

Claimant asserts that Respondent was obligated under the JPI Agreement to make a determination as to whether he was a "Good Leaver", and that Respondent failed to perform this contractual obligation. Respondent asserts that the language of Section 5.3 and 5.4 gives it total discretion as to whether it must make any determination at all as to whether Claimant is a "Good Leaver", and therefore may withhold indefinitely any determination of "Good Leaver" status. This is primarily founded upon, according to Respondent, the language of Section 5.4 which states that "[i]n the absence of an affirmative decision by the [Respondent], the [Claimant] will not be treated as a Good Leaver upon his termination of employment with the [Respondent] , , ," Respondent asserts that this language grants it discretion to never make a determination (with the consequence being, under Section 5.4, that Claimant will be treated as a "non_good Leaver" and therefore ineligible for any issuance of any stock awards). I disagree. Not only does this language fail to state a right to withhold a determination of "Good Leaver" status indefinitely, its use by the JPI Agreement also does not establish a right for the Respondent, it actually operates as a parameter for determining "Good Leaver" status. To wit: 

Section 5.4 is not a separate term establishing a separate criterion for the exercise of Respondent's rights when Claimant's employment terminates. In actuality, this section is intended to establish the limiting parameters by which a determination of "Good Leaver" status will be made. This is obvious from the language in Section 5.3-in particular, the parenthetical stating "as determined in accordance with Section 5.4 below". This parenthetical is stating that it is incorporating Section 5.4 by reference, and that the label or status of "Good Leaver" will be applied to Claimant in the manner described in Section 5.4. 

When looking at Section 5.4, it first states that when determining if Claimant is a "Good Leaver" for Section 5.3 purposes, Respondent "shall have the sole and absolute discretion to determine whether [Claimant] shall be considered to be a Good Leaver . . . " (Emphasis added). By saying that Respondent has discretion to determine if Claimant "shall" be considered to be a Good Leaver", the JPI Agreement is requiring that a determination be made. Whether or not Claimant "shall" be considered a "Good Leaver" is what is left to Respondent's discretion, according to this sentence. It is not a reservation of the right to elect not to make the decision at all, as Respondent had asserted. 

The foregoing also holds true for the latter portion of Section 5.4, which states that "i]n the absence of an affirmative decision by the [Respondent], the [Claimant] will not be treated as a "Good Leaver" upon his termination of employment with the [Respondent] . . . " Whether this portion of Section 5.4 is read in a vacuum or in conjunction with the former portion of Section 5.4, it in no way suggests the reservation of right to never decide whether Claimant is a "Good Leaver", as Respondent asserted. On its own, it merely states in plain English that while no decision has been made that Claimant is a "Good Leaver", he will be treated as a "non-Good Leaver"-i.e. while Respondent is deciding, no issuance will be made and no issuance can be compelled. This is made even more clear when read in conjunction with the former portion of Section 5.4.

Given the foregoing, when both parts of Section 5.4 are read together, and in the context of Section 5.3 which incorporates it, what is being stated is that Respondent "shall" make a determination as to whether Claimant is a "Good Leaver" in order to establish any right to future issuance under the Incentive Plan, Claimant will be treated as not a "Good Leaver" while that decision is being made, and whether Claimant is or is not a "Good Leaver" is at Respondent's discretion.

Great debate was had over Section 5.3 and 5.4 as to its meaning. There was authority also offered to support that the absence of a determination was legally enforceable under New York law-authority I believe to be inapposite and misinterpreted by Respondent. However, the foregoing analysis, arguments by Respondent and authority offered by Respondent are ultimately academic because evidence at the Arbitration establishes that the Respondent did in fact make a determination of "Good Leaver" status, and applied that determination as its reasoning for considering Claimant a "nonGood Leaver", and for not issuing stock as per the JPI Agreement-facts I believe were not considered for the final determination in this matter. 

At the Arbitration, two executive leaders testified-one currently active, and the other no longer with the Respondent. Each either have or had ultimate decision-making power as to if and how "Good Leaver" status would be applied to any employee. When giving testimony on Claimant's "Good Leaver" status, they focused on Claimant having gone into the employ of a competitor. Each of them confirmed that working for a competitor was a primary factor for "Good Leaver" status generally, and of particular relevance to the Claimant and his claims in these proceedings. More poignantly, they each testified that it is because Claimant went to work for an employer that competed with Respondent that Claimant was not and could not be considered a "Good Leaver". In fact, one of the witnesses (the currently active leader) was quite emphatic on the point, going so far as to suggest that the proceedings were entirely unnecessary because, having gone to work for a competitor, it was completely elemental that Claimant could not be a "Good Leaver". This testimony, however, along with the testimony of the other witnesses, expresses clearly that Respondent had, in fact, made a determination as to Claimant's "Good Leaver" status; that Respondent deemed him a "non-Good Leaver" because he went to work for a competitor, and that he therefore forfeited his right to issuance of common stock under the JPI Agreement. Thus, whether Respondent has the right to withhold a determination or not is academic because Respondent clearly made one. As such, it now becomes necessary to analyze if that determination was made in accordance with the JPI Agreement, or otherwise in good faith with the terms of the JPI Agreement. 

What does "Good Leaver" mean? As stated earlier, there is no definition for this term in the JPI Agreement or in the Incentive Plan. Where a term of a contract is ambiguous, extrinsic evidence (i.e. parole evidence) is always accepted to help decipher and determine how the parties-not the Panel-understand the term to mean. Based on the testimony and evidence given, it does not appear that the parties are divided on how "Good Leaver" is defined. 

Great emphasis was made by Respondent on the lack of definition, and on the discretions held in Section 5.3 and 5.4 of the JPI Agreement, to represent that Respondent retained the right to define "Good Leaver" however they wished. Notwithstanding the fact that such a position is repugnant under the law (emphasizing more the error of the Panel in its determination), it is not necessary to dive deep to find that Respondent has acted contrary to its own analysis for holding Claimant to be a "non-Good Leaver". 

At the Arbitration and in the testimony offered by the Respondent's witnesses (which included another high-level executive who offered how Respondent would typically analyze "Good Leaver" status), it was understood that Respondent deemed Claimant a "non-Good Leaver" on the basis of his having entered into employment with a competitor. However, the testimony offered by Respondent's witnesses established that employment with a competitor alone would not cause a terminated employee to be deemed a "Good Leaver". According to testimony, employees have gone to work for competitors and have been deemed a "Good Leaver" when they do so in accordance with "other agreements" that establish the parameters for entering into the employ of a competitor, "holding up their end of the bargain"-this is the distilled testimony given by Respondent's witnesses (with each quoted phrase reflective of the words used by the witnesses). If the Panel is to take the witnesses at their word, then the evidence offered by Respondent should support that Claimant should be considered a "Good Leaver"; that the Respondent's decision to consider Claimant a "non-Good Leaver" was an abuse of its discretion under Section 5.4, or an exercise made in bad faith. 

Under the undisputed facts of this matter, when Claimant's employment terminated, he complied with all aspects of his various agreements offered into evidence-the JPI Agreement and his employment agreement. No claim was made, or evidence offered, by Respondent that Claimant violated any term of his agreements with Respondent. In particular, as it pertains to Respondent's determination that Claimant was a "non-Good Leaver" for having entered into the employ of a competitor, there was no claim or evidence provided that Claimant violated the non-compete clause of his employment agreement, which restrained Claimant from working for a competitor to Respondent for a period of 6 months. Respondent did argue that all other agreements not the JPI Agreement are separate and not to be considered within the context of the JPI Agreement, however this argument lacks merit. To understand what are the obligations of a contracting party, the underlying contract must be reviewed for definitions of the obligations. Where there is a lack of such defined obligations or an ambiguity as to what are the limits of any obligations-as there was in the JPI Agreement-other evidence must be reviewed to understand how the parties understood the terms of the JPI Agreement. Such evidence was offered, and the most poignant was the Respondent's witness testimony. 

Over and over again, Respondent, by its witnesses, testified that Claimant's having entered into the employ of a competitor made him a "non-Good Leaver" for purposes of the terms of the JPI Agreement. Yet, nothing in the JPI Agreement defines that entering into the employ of a competitor should impose a "non-Good Leaver" status. Respondent argued that this lack of clarity in the JPI Agreement allows it to define a "Good Leaver" however it likes, including that employment with a competitor constitutes "non-Good Leaver" status. However, Respondent's witnesses also testified that entering into the employ of a competitor would not cause a former employee to be considered a "non-Good Leaver" if such were to occur in accordance with "other agreements", holding up "his end of the bargain". Therefore, the Respondent has established that simply entering into the employ of a competitor is not alone a basis for being labeled a "non-Good Leaver". 

There is evidence of "other agreements" between the parties which apply to Claimant's employ with a competitor, the Claimant's employment agreement, which sets a noncompete restriction for a period of 6 months. It is undisputed that he complied with this and every other post-employment restriction in his employment agreement-and in every other agreement offered into evidence. As such, the evidence shows that Claimant "held up his end of the bargain" as established with "other agreements" between the parties, and therefore to deem him to be a "non-Good Leaver" was an abuse of Respondent's discretion to determine Claimant a "non-Good Leaver", and that their determination was made in bad faith as a means to avoid the obligation to issue him the common stock due him under the terms of the JPI Agreement. To determine otherwise disregards the terms of the JPI Agreement, ignores the evidence offered by both parties (and in particular by the Respondent), and makes the agreement not only illusory but would also operate to increase the Claimant's non-compete restriction in his employment agreement by implying that the common stock issuance schedule doubles as a further restrictive covenant on competing employment (which would be an act to change the agreements).

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