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Junk v. Aon Corp.

November 30, 2007


The opinion of the court was delivered by: Lawrence M. McKENNA, D.J.


Plaintiff Daniel Junk ("Plaintiff") is a former employee of Aon Corporation and its subsidiaries Aon Service Corporation and Aon Consulting, Inc. (collectively, "Aon" or "Defendants"), who now brings suit against Defendants asserting (1) Breach of Contract, (2) Fraudulent Inducement, and (3) Promissory Fraud claims. Defendants move to dismiss Plaintiff's complaint under Federal Rule of Civil Procedure 12(b)(6), citing Plaintiff's failure to state claims upon which relief can be granted. For the reasons set forth below, Defendants' motion to dismiss is GRANTED in part, and DENIED in part.


Defendant Aon Corporation is incorporated in Delaware with a principal place of business in New York; its subsidiaries, Defendants Aon Service Corporation and Aon Consulting, Inc., are incorporated in Illinois and New York, respectively, with their principal places of business in New York. (Plaintiff's Complaint ("Compl.") ¶¶ 3, 4, 6.) In October 2006, Plaintiff, a South Carolina resident, relocated to New York City in order to begin his employment with Aon. (Id. ¶¶ 1, 28.) A graduate of New York Law School, Plaintiff held various executive and managerial positions for electronic discovery software*fn1 and service providers prior to working for Aon, and had acquired substantial experience in electronic discovery-related matters.*fn2 (Id. ¶¶ 10, 11.) According to the complaint, Plaintiff was persuaded to travel to New York City and meet with Aon's management "based on AON's [sic] product and software development representations" that were proffered by Jerry Barbanel, an executive vice president of Aon. (Id. ¶¶ 20, 22.) The representations allegedly made by Barbanel gave Plaintiff the impression that Aon was in the final developmental stage for its "complete end-to-end e-discovery system" that would be completed in either "three weeks" or within "the next three months." (Id. ¶ 24.) Plaintiff also alleges that Barbanel promised, both in their October 2006 meeting and in subsequent phone conversations, that if he "accept[ed] employment with AON [sic], [Plaintiff] would have a guaranteed position at least until AON [sic] rolled out its end-to-end proprietary software solution and obtained the dominant market leading position in e-discovery software solutions." (Id. ¶ 27.) According to Plaintiff, this promise was made conditional upon his agreement to sell his home in South Carolina and move to New York "within a year after starting with AON [sic]." (Id.)

Plaintiff asserts that he relied upon these representations in deciding to accept employment with Aon, relinquish his current position with Renew Data Corporation, and sell his home in South Carolina. (Id. ¶¶ 28, 29.) Additionally, he now contends that the representations he relied upon were fraudulent, and that they were known by Defendants to be fraudulent at the time they were made. (Id. ¶¶ 26, 30.) Plaintiff also alleges that at the time his employment with Aon began: the company had not yet commenced their development of the e-discovery software; the allocation of funds for such development had not yet been approved; in lieu of its own software, Aon was marketing a repackaged version of "File Control," an already established e-discovery tool*fn3 ; and Barbanel frequently "instructed Plaintiff and other AON [sic] employees to lie to customers ... and never to admit that [the] software was simply rebranded third-party applications." (Id. ¶ 30.)

According to his complaint, Plaintiff grew increasingly concerned about these alleged misrepresentations and expressed his discomfort to Jerry Barbanel on several occasions. (Id. ¶¶ 32, 35.) In March and April of 2007, Plaintiff spoke to several members of Aon's management, informing them of the misrepresentations that Barbanel encouraged him (and his colleagues) to relay to customers, shareholders, and the public; he also articulated that his uneasiness was due in large part to the fact that development of Aon's software had yet to even begin. (Id. ¶¶ 36, 38.) Subsequent to these conversations, an email from Anne Kemp, a colleague of Plaintiff's, was sent to Aon's top executive management as well as to members of Defendants' human resources team. (Id. ¶ 39.) The correspondence, which was also copied to Plaintiff, detailed "the fraudulent activities and misrepresentations of Jerry Barbanel and his management staff." (Id.) The following day, Plaintiff was contacted by another member of Aon's management who informed Plaintiff that Barbanel was aware of the Kemp email and stating that "there would be no investigation." (Id. ¶ 41.) Two days after the Kemp email was sent, Plaintiff received his notice of termination. (Id. ¶ 42.) Plaintiff now alleges and seeks compensation from Defendants for: (1) Breach of Contract, (2) Fraudulent Inducement, and (3) Promissory Fraud. Defendants move to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure.


Under Rule 12(b)(6) a complaint will be dismissed if there is a "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). The Court must read the complaint generously, accepting the truth of and drawing all reasonable inferences from well-pleaded factual allegations. See York v. Ass'n of Bar of City of New York, 286 F.3d 122, 125 (2d Cir. 2002); see also Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir. 1993). A court should dismiss a complaint only "if 'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Valmonte v. Bane, 18 F. 3d 992, 998 (2d Cir. 1994)(quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); see also Jenkins v. McKeithen, 395 U.S. 411, 422 (1969) (citation omitted). "To survive dismissal, the plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient 'to raise a right to relief above the speculative level.'" Atsi Communications, Inc. v. Shaar Fund Ltd., 493 F.3d 87 (2d Cir. 2007)(quoting Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007)).


Defendants move to dismiss Plaintiff's causes of action for breach of contract based upon his termination "prior to the development and rollout of AON's [sic] proprietary end-to-end software solutions." (Compl. ¶ 45.) Plaintiff contends that his termination constitutes a breach of the employment agreement between himself and Defendants, as well as a breach of Defendants' stated policies and procedures regarding the "reporting of wrongful activities and procedures," which Plaintiff argues was also a contract between himself and Defendants. (Id. ¶¶ 45, 50, 52.) First, the Court will consider Plaintiff's claim that Defendants' breached the terms of their employment agreement.


Relevant case law dictates that an at-will employee, i.e., one whose employment can be terminated at any time, cannot maintain a claim for breach of contract. Chimarev v. TD Waterhouse Investor Services, Inc., 280 F.Supp.2d 208, 216 (S.D.N.Y. 2003)(citations omitted).; see also Minton v. Lenox Hill Hosp., 160 F.Supp.2d 687, 699 (S.D.N.Y. 2001) (an at-will employee cannot maintain a breach of contract claim). Such an employee confirms his or her at-will status by signing an employment agreement "which explicitly indicate[s] that the terms of his employment were at-will." Chimarev, 280 F.Supp.2d 208 at 216.

Additionally, even without a signed agreement affirming at-will employment, New York law states that an indefinite period of employment "is presumed to be a hiring at will that may be freely terminated by either party at any time for any reason or even for no reason." Lobosco v. New York Telephone Company/NYNEX, 96 N.Y.2d 312, 316 (N.Y. 2001)(citation omitted). Courts have only found exceptions where a Plaintiff can show that there was reliance upon an "express written policy limiting the right of discharge." Id. (emphasis added).

In the instant litigation Plaintiff signed an employment offer letter from Defendants on November 9, 2006. (See Galletti Aff., Ex. B.) The offer letter reads in pertinent part:

Nothing in this letter is intended or should be construed as a contract of guarantee of indefinite employment. Employment with Aon Consulting is for no specified period and constitutes at-will employment. As a result, you are free to resign at any time, for any reason or for no reason. Similarly, the Company is free to conclude its employment relationship with you at any time, for any reason or for no reason. (Id.)

By signing this letter, Plaintiff agreed to the terms therein -- including his status as an at-will employee of Defendants. Further, even without this offer letter, in the absence of a written agreement specifying the length of employment, Plaintiff is presumed to be an at-will ...

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