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INSINGA v. COOP. CENTRALE RAIFFEISEN BORENLEENBANK B.A.

September 20, 2005.

JOSEPH INSINGA, Plaintiff,
v.
COOPERATIEVE CENTRALE RAIFFEISEN BORENLEENBANK B.A., RABOBANK NEDERLAND and DOE CORPORATIONS 1-5, Defendants.



The opinion of the court was delivered by: RICHARD HOLWELL, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Joseph Insinga brought this diversity action against Cooperatieve Centrale Raiffeisen Borleenbank B.A., Rabobank Nederland ("Rabobank" or the "Bank") and Doe Corporations 1-5, asserting claims of age discrimination, retaliation, breach of contract and fraudulent inducement under New York law.*fn1 Rabobank has now moved for partial summary judgment with respect to plaintiff's claims of fraudulent inducement and breach of contract. For the reasons set forth below, the Court grants Rabobank's motion in its entirety.

BACKGROUND

  Unless otherwise indicated, the following facts are undisputed.*fn2 Rabobank is a Netherlands-based commercial bank with approximately 450 employees in its New York branch. (Def.'s 56.1 ¶ 1; Pl.'s 56.1 ¶ 1.) In August of 1990, Rabobank hired Insinga as a loan workout officer in its Special Asset Management department. (Def.'s 56.1 ¶ 2; Pl.'s 56.1 ¶ 2.) Insinga subsequently transferred from the Special Asset Management department to the Corporate Finance Department, which was headed by J.W. "Hans" den Baas. (Def.'s 56.1 ¶ 3; Pl.'s 56.1 ¶ 3.) Insinga started working on transactions for den Baas and eventually became promoted to managing director in 1995. (Insinga Dep. Tr. at 363.)

  I. The Yorkshire Food Group P.L.C. Workout

  In 1997, the New York branch of Rabobank assumed responsibility for a credit from Rabobank's London office and another bank, NatWest, in an entity known as the Yorkshire Food Group P.L.C. ("Yorkshire"). (Def.'s 56.1 ¶ 4.) Plaintiff contends further that Rabobank increased its exposure to $110 million at the direction of den Baas and Reinier Mesritz, the General Manager and highest officer at Rabobank in North and South America during that period. (Pl.'s 56.1 ¶ 4.)

  Within two weeks, the credit situation became "dire" as Yorkshire was unable to repay its debt. (Def.'s 56.1 ¶ 5; Pl.'s 56.1 ¶ 5.) Rabobank was forced to place the loans in workout status and sought to convert the remaining Yorkshire assets into funds for repaying the outstanding loans. (Id.) The parties agree that because of Insinga's extensive workout experience, den Baas asked him to handle the Yorkshire workout even though Insinga was in the Corporate Finance Department and no longer in the Special Asset Management department. (Def.'s 56.1 ¶ 6; Pl.'s 56.1 ¶ 6; den Baas Dep. Tr. at 31.) den Baas admitted that the Yorkshire workout potentially presented the largest risk of loss that Rabobank had ever faced. (den Baas Dep. Tr. at 41.) The parties agree that in or about December 1997, Insinga was, at the very least, "hesitant" and "was not happy" about taking the assignment. (Def.'s 56.1 ¶ 7; Pl.'s 56.1 ¶ 7; den Baas Dep. Tr. at 72.) Insinga "raised the problem that [the workout] would be a full-time job" and that he would rather work on "new transactions than trying to work out a bad transaction." (den Baas Dep. Tr. at 58-9.)

  It is undisputed that plaintiff's preference was to continue his work in the corporate finance group. (Insinga Dep. Tr. at 21; den Baas Dep. Tr. at 70.) He told Rabobank — specifically, Mesritz, Guillermo "Bill" Bilbao (General Counsel of Rabobank) and den Baas — that he was "willing to consider a temporary assignment on Yorkshire provided I got certain very clear assurances concerning my career, salary and bonus, which is compensation, business cards, a secretary, office, work with colleagues in corporate finance." (Insinga Dep. Tr. at 21; den Baas Dep. Tr. at 76.) Plaintiff opined that he would not have taken the assignment and "sacrifice[d] 30 years of hard work, my entire career aimed at getting into the corporate finance industry . . ." had he known that there were any doubts as to his ultimate return to corporate finance. (Id. at 22.)

  den Baas admits that he told Insinga that he could return to Corporate Finance once he finished the workout in order to "induce" him to say yes. (den Baas Dep. Tr. at 71.) However, Insinga notes that "the intent of the parties was that no one knew how long it would take for that Yorkshire assignment to be completed." (Insinga Dep. Tr. at 11.) Ultimately, Insinga agreed to take the assignment. (Def.'s 56.1 ¶ 8; Pl.'s 56.1 ¶ 8.) 2. The January 3, 2000 Agreement

  In December of 1997, Insinga began handling the Yorkshire workout, reporting directly to Mesritz and without den Baas in his reporting line. (Def.'s 56.1 ¶ 10; Pl.'s 56.1 ¶ 10.) Plaintiff stated that the "Yorkshire workout was a Herculean task and consumed all my time." (Insinga Aff. ¶ 33.) The Bank was pleased with his performance. In a letter dated September 17, 1998, Mesritz told Insinga that "[d]ue to your outstanding efforts with regard to Yorkshire, which is inhibiting you from actively engaging in any other profitable business activity, the Bank will guarantee to you a minimum bonus payment equal to your 1997 bonus of $450,000 . . ." (Insinga Aff., Ex. B.) Because Insinga believed that Mesritz might be transferred to another position before the Yorkshire workout was completed, he discussed with Mesritz his desire "to have some written evidence of his assurances regarding certain aspects of the Yorkshire project." (Insinga Aff. ¶ 46.) However, Insinga did not "request, or even suggest, that the written agreement address my return to the Corporate Finance Group." (Id. ¶ 47.)

  On October 27, 1999 — nearly two years after Insinga had already begun the Yorkshire workout — Insinga presented Mesritz with a proposed agreement reflecting the terms of his assignment to the Yorkshire workout. Insinga's lawyer who was not associated with Rabobank prepared the initial draft. (Def.'s 56.1 ¶ 11; Pl.'s 56.1 ¶ 11.) It is undisputed that Mesritz did not sign this first draft. (Id.) Indeed, the parties engaged in extensive negotiations and drafts over the next few months. (Lerner Decl., Exs. H-J.)

  On November 29, 1999, Insinga wrote Mesritz a memo conveying his desire to return to the Corporate Finance Group. (Insinga Aff., Ex. C.) In this memo, Insinga expressed that he had "been relying on the bank's agreement that when I stop my efforts on Yorkshire, I will return to my old position in the Corporate Finance Group." (Id.) Ultimately, he wrote that "[if] my Yorkshire work ends in the near future, I wish to return to Corporate Finance at the first opportunity (Hans has advised [me that] my old position is available to me)." (Id.)

  The parties finally executed an agreement dated January 3, 2000 (the "Agreement"), although defendant claims that the Agreement was signed sometime after April 26, 2000. (Def.'s 56.1 ¶ 12; Pl.'s 56.1 ¶ 12.) It is undisputed that before signing the Agreement, Insinga was represented by counsel, read the Agreement and understood it. (Def.'s 56.1 ¶ 13; Pl.'s 56.1 ¶ 13.) The Agreement stated that its purpose was to "confirm? the terms of your assignment as an employee of Rabobank relative to the workout and collection of Rabobank's interest in Yorkshire . . ." (Lerner Decl., Ex. K.) The Agreement was effective by its terms through March 31, 2001. (Id.)

  The Agreement specifically provided that it "can be extended by us, at our sole discretion, under the same terms and conditions herein, to March 31, 2002 and beyond." (Id.) The Agreement also contained a "Change in Purpose" clause, which stated:
In the event that after March 31, 2000 both (i) Henk Gentis and I are no longer associated with Rabobank or the Yorkshire group of companies, or you are no longer report [sic] to either of us, and (ii) new management requires that you sell all or a material part (greater than 35% of the market values of Yorkshire U.S. assets) of the Yorkshire group of companies in a manner different than we have agreed to date, over your reasonable objections, you will have the following options after you assist with the successful completion of the sale: (1) transfer to a similar level position within the Bank and receive a bonus, payable in 2001 when bonuses are paid to management by Rabobank but no later than March 31, 2001, equal to the sum of (a) a pro-rata share of the $500,000 annual bonus incentive calculated based on the number of months worked on the New Assignment in 2000 over 12) [sic], plus (b) $1,350,000 in lieu of any additional fees you would be entitled to receive under Additional Fees above; or (2) voluntarily terminate your employment with the Bank and receive the $500,000 annual incentive bonus, six months salary continuation and $1,350,000 in lieu of any additional fees you would be entitled to receive under Additional Fees above, subject to signing Rabobank's standard Release and Waiver.
(Id.) The Agreement further contained a "Non Renewal or Termination Without Cause" clause, which provided:
You acknowledge that you can be terminated without cause at any time at Rabobank's sole discretion. If you are terminated without cause prior to March 31, 2001 (or such later date as applicable if Rabobank extends this Agreement) or we do not renew this Agreement under the existing terms through March 31, 2002, you shall receive the full bonus for the year 2000 (or such later year as applicable if Rabobank extends this Agreement), plus $1,350,000 in lieu of ...

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