United States District Court, S.D. New York
For Tarun Kshetrapal, Plaintiff: Russell Lewis Bogart, LEAD ATTORNEY, Hoffman Polland & Furman, New York, NY.
For Dish Network, LLC, Vikas Arora, Izabela Slowikowska, Defendants: Dana Loryn G. Weisbrod, Peter C. Moskowitz, Steven Joshua Seidenfeld, Jackson Lewis P.C. (NY), New York, NY.
OPINION & ORDER
HONORABLE PAUL A. CROTTY, United States District Judge.
Plaintiff Tarun Kshetrapal sued his former employer Dish Network LLC (" Dish Network" ) and two Dish Network employees, alleging: (1) violations of the Sarbanes-Oxley Act (" SOX" ), (2) violations of the Dodd-Frank Act (" DFA" ), (3) tortious interference with contract, (4) tortious interference with business relations, and (5) defamation. Defendants move to dismiss all claims pursuant to Federal Rule of Civil Procedure 12(b)(6), except the portion of Plaintiff's SOX claim concerning his pre-termination actions, which Defendants concede states a claim. For the reasons set forth below, the motion to dismiss the SOX claim is DENIED. The motion to dismiss the DFA claim is GRANTED. The motion to dismiss the tortious interference with contract claim is GRANTED, The motion to dismiss the tortious interference with business relations claim is DENIED. The motion to dismiss the defamation claim is GRANTED IN PART and DENIED IN PART.
From March 2007 through November 2008, Plaintiff was employed as the Associate Director of South Asian Marketing for Dish Network, a satellite television broadcasting company. Compl. ¶ ¶ 6, 13. His responsibilities consisted of marketing Dish Network's South Asian television channels. Id. ¶ 16.
Plaintiff reported to non-party Tracy Thompson West, Vice President for International Marketing and Programming. In April 2007, West retained the marketing
agency Aman Entertainment, Inc. d/b/a Dreamakers (" Dreamakers" ), to " furnish grass roots marketing services." Id. ¶ ¶ 2, 19. In spring 2008, Plaintiff began to question the legitimacy of Dreamakers' invoicing to Dish Network. He informed West and Defendant Izabela Slowikowska, General Manager of Programming for Dish Network's International Department, of his belief that Dreamakers was invoicing Dish Network for work that Dreamakers had either performed incorrectly, or had not performed at all. Id. ¶ ¶ 8, 39. Plaintiff contends that West and Slowikowska were aware of Dreamakers' fraudulent invoicing, but continued to work with Dreamakers in return for bribes from the agency. Id. ¶ ¶ 29-37, 40.
In August 2008, Plaintiff performed an investigation to determine whether Dreamakers was properly performing its marketing duties for Dish Network, and found that Dreamakers' performance was inadequate for a number of reasons. Id. ¶ 42. Plaintiff furnished reports to West and Slowikowska describing the inadequacies, but they merely reprimanded Plaintiff for investigating Dreamakers' activities. Id. ¶ ¶ 43-51.
In September 2008, Plaintiff refused to sign off on certain Dreamakers invoices that he believed to be fraudulent. Sonia Patel, the CEO of Dreamakers, demanded that West fire Plaintiff, but West declined to do so. Id. ¶ ¶ 53-54. In response, Patel threatened to expose the fact that West had accepted a steeply discounted Mercedes from Dreamakers. Id. ¶ 54. West then reported her receipt of the Mercedes to Eric Sahl, Dish Network's Senior Vice President of Programming, who commenced an internal investigation into the matter. Id. ¶ ¶ 54-55. Plaintiff cooperated fully with the investigation, which validated Plaintiff's concerns regarding Dreamakers' fraudulent invoicing. In October 2008, Dish Network discontinued its relationship with Dreamakers, fired West, and issued a warning to Slowikowska. Id. 57. In November 2008, Dish Network, " without justification," forced Plaintiff to resign. Id. Following Plaintiff's departure from Dish Network, Slowikowska " repeatedly referred to Plaintiff's 'shady' business ethics" during conversations with other employees. Id. ¶ 67.
In December 2008, Dreamakers filed a breach of contract action against Dish Network, Dish Network asserted counterclaims for Dreamakers' alleged fraudulent invoicing and bribery. Id. ¶ 58. Plaintiff was deposed during the course of the litigation, and testified regarding Dreamakers' fraudulent invoicing and misconduct; he further explained that he had discussed these issues with West and Slowikowska, but they had " repeatedly overruled his complaints." Id. ¶ 61.
In January 2009, Dish Network appointed Chris Kuelling to replace West as Vice President for International Programming. That same month, Plaintiff obtained a job as a Senior Vice President of South Asian Marketing at SAA VN, LLC, a Bollywood music streaming service. Id. ¶ ¶ 64-65. In fall 2009, Dish Network placed online advertising with SAA VN, but Slowikowska subsequently instructed Dish Network's marketing manager not to conduct further business with SAA VN. Id. ¶ 68.
In June 2010, Plaintiff was offered a position at Nimbus Communications Limited as the " in-country" head of NeoSports, a new cricket channel; but several days later a Nimbus executive rescinded the offer, explaining that Dish Network's International Programing Department had " conveyed . . . that it did not want Plaintiff at the helm of the channel." Id. ¶ 69. Plaintiff alleges that Kuelling provided a negative reference about him to Nimbus,
in violation of Dish Network's neutral reference policy. Id. ¶ ¶ 71-72.
In March 2011, Defendant Vikas Arora, a manager of International Content at Dish Network, advised SAA VN that " [t]he direction internally at this time is not to work with SAA VN" ; that " Dish's management [was] unwilling to work with SAA VN because it employs" Plaintiff; and that Arora would be unable to " get approvals" to work with SAA VN. Id. ¶ ¶ 74-75. In addition, Slowikowska informed Arora that if Dish Network placed advertisements with SAA VN, an " extra layer of audit" would be required due to Plaintiff's " prior unethical business conduct." Id. ¶ 116. Slowikowska further raised the issue of Plaintiff's " prior unethical behavior" during a conversation with Kuelling regarding doing business with SAA VN. Id. ¶ 78.
To survive a motion to dismiss for failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6), " a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim is facially plausible if the complaint contains " factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. " A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Id, At the motion to dismiss stage, the court " assess[es] the legal feasibility of the ...