     15-3104
     Goldberg v. Jacquet

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 30th day of June, two thousand sixteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                GUIDO CALABRESI,
 8                REENA RAGGI,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       MARC GOLDBERG,
13                Plaintiff-Appellant,
14
15                    -v.-                                               15-3104
16
17       ERNEST K. JACQUET,
18                Defendant-Appellee.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        ARIEL Y. GRAFF, The Ottinger
22                                             Firm, P.C., New York, New York.
23
24       FOR APPELLEE:                         HARLAN M. LAZARUS, Lazarus &
25                                             Lazarus, P.C., New York, New
26                                             York.
27


                                                  1
 1        Appeal from a judgment of the United States District
 2   Court for the Southern District of New York (Crotty, J.).
 3
 4        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 5   AND DECREED that the judgment of the district court be
 6   AFFIRMED.
 7
 8        Plaintiff Marc Goldberg appeals from the judgment of
 9   the United States District Court for the Southern District
10   of New York (Crotty, J.), granting summary judgment in favor
11   of defendant Ernest K. Jacquet. The plaintiff argues that
12   the district court erred by ruling that his claims are
13   outside the scope of New York Labor Law (“NYLL”) §§ 193 and
14   198-b. We review a grant of summary judgment de novo. See
15   Delaney v. Bank of Am. Corp., 766 F.3d 163, 167 (2d Cir.
16   2014). We assume the parties’ familiarity with the
17   underlying facts, the procedural history, and the issues
18   presented for review.
19
20        1. Under NYLL § 193(1)(b), “[n]o employer shall make
21   any deduction from the wages of an employee, except
22   deductions which . . . are expressly authorized in writing
23   by the employee and are for the benefit of the employee.”
24   In order to state a claim for a violation of NYLL § 193, a
25   plaintiff must allege a specific deduction from wages and
26   not merely a failure to pay wages. See Kletter v. Fleming,
27   32 A.D.3d 566, 567 (N.Y. App. Div. 3d Dep’t 2006).
28
29        A “‘deduction’ is more targeted and direct than the
30   wholesale withholding” of wages and “New York courts
31   recognize that the purpose of section 193 is to ‘place the
32   risk of loss for such things as damaged or spoiled
33   merchandise on the employer rather than the employee.’”
34   Gold v. Am. Med. Alert Corp., 2015 WL 4887525, at *5
35   (S.D.N.Y. Aug. 17, 2015) (quoting Hudacs v. Frito–Lay, Inc.,
36   90 N.Y.2d 342, 349 (1997)). The district court correctly
37   ruled that although Goldberg did not receive wages to which
38   he was entitled, his wages were not reduced in the manner
39   prohibited by NYLL § 193.1
40



         1
              Wholesale withholding of wages is covered by NYLL
     § 191, which the parties agree does not apply to the
     plaintiff because he was an executive and therefore exempt
     from this provision.
                                  2
 1        2. Goldberg argues that because he was under threat of
 2   termination if he refused to accept lower wages, his
 3   employer violated NYLL § 198-b(2), which provides that it is
 4   “unlawful for any person . . . to request, demand, or
 5   receive . . . a return, donation or contribution of any part
 6   or all of [an] employee’s wages [or] salary, . . . upon the
 7   statement, representation, or understanding that failure to
 8   comply with such request or demand will prevent such
 9   employee from procuring or retaining employment.”
10
11        As the district court recognized, this is a novel
12   application of the so-called “kickback” statute because the
13   threatened termination was not coercive in the usual sense;
14   rather, it was a result of the company’s financial trouble.
15   The company’s distress caused the company to ask the
16   management team, including the plaintiff, to accept a pay
17   cut, and they agreed to do so. The company was never able
18   to secure additional funding to pay back its employees, and
19   eventually ceased all business operations. The “threat of
20   termination” was not a threat as such, but instead was the
21   obvious consequence of what would happen if the company
22   folded due to its financial trouble. Under these
23   circumstances, it cannot be expected that the reach of NYLL
24   § 198-b would extend to the conduct at issue.2
25
26        For the foregoing reasons, and finding no merit in the
27   plaintiff’s other arguments, we hereby AFFIRM the judgment
28   of the district court.
29
30                              FOR THE COURT:
31                              CATHERINE O’HAGAN WOLFE, CLERK
32
33
34




         2
               Notably, the defendant was not the plaintiff’s
     employer; rather, the defendant was a majority investor in,
     and non-executive Chairman of, Passport Brands, Inc., which
     was the plaintiff’s actual employer. The parties do not
     address whether the economic realities of the defendant’s
     role at Passport were such that he qualified as the
     plaintiff’s “employer” for NYLL purposes. See, e.g., Bonito
     v. Avalon Partners, Inc., 106 A.D.3d 625, 626 (N.Y. App.
     Div. 1st Dep’t 2013).
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