Plaintiff Mark Swartz is the former Chief Financial Officer of defendant Tyco International Ltd. He brings this suit to recover money which he claims is owed to him under two different contracts entered into between himself and Tyco before he resigned from the company in 2002.
Tyco sued Swartz in 2003 seeking disgorgement of all compensation and benefits paid to him in connection with his employment with Tyco. Tyco Int'l v. Swartz, 03 Civ. 02247 (S.D.N.Y). That case had been the subject of litigation before this court for more than nine years at the time the complaint in this action was filed. Most of the issues in the Tyco action were recently tried to the Court without a jury.
Swartz's complaint was filed on May 4, 2012 in New York County Supreme Court and removed to this court on May 22, 2012.
Tyco moves to dismiss Swartz's complaint in the new action on the ground that the claims were required to be brought as compulsory counterclaims in the Tyco action but were not.
Swartz left Tyco in the fall of 2002, when new management came in. The serious difficulties occurring at Tyco at that time are well known and will not be discussed here.
Swartz is seeking to recover money allegedly owed -- but never paid -- to him under two contracts: an Executive Retirement Agreement ("ERA") entered into on March 1, 1999 and amended on October 1, 1999 and a separation agreement dated August 1, 2002.
Swartz argues that Tyco has breached both contracts. In addition Swartz claims that Tyco has unjustly enriched itself by taking the value given up by Swartz in the August 1 agreement and then depriving him of the benefit of his bargain by refusing to make the payments contemplated by that agreement.
The ERA provides for the deferred payment of a portion of Swartz's bonus compensation as a retirement benefit. Swartz contends that the ERA entitles him to a lump sum payment of the entire benefit amount. Swartz claims that, as of August 1, 2011, he was entitled to a payout of $47,643,035.00 under the ERA.
At the time of his departure, Swartz and Tyco entered into an agreement dated August 1, 2002. Tyco agreed to make certain payments to Swartz as stipulated in paragraphs 1 and 2 of the agreement which are here quoted:
1. The Company agrees to pay within 10 days of the execution of this Agreement to Swartz the following amounts: (a) the amounts due to Swartz under the Company's Deferred Compensation Plan; (b) the current value of Swartz's Executive Life Insurance program; (c) the amounts due to Swartz under his 401(k) plan; and (d) the amounts due to Swartz under his Senior Executive Retirement Program; and Swartz agrees not to make any claim under his executive retirement agreement at this time;
2. Swartz agrees to waive his rights under the August 1, 2001 amendment to his Retention Agreement dated January 22, 2001; and the Company agrees to fulfill its obligations under the original Retention Agreement dated January 22, 2001, and will treat Swartz's leaving the company as if it were a resignation for Good Reason as defined in the original Retention Agreement (and the date of resignation shall be August 1, 2002 for the purposes of the original Retention Agreement);
The reference to "Senior Executive Retirement Program" is mistaken in its use of the word "Senior." The correct name is "Supplemental Executive Retirement Program," which is sometimes given the shorthand "SERP." The last clause of paragraph 1 refers to ...