    16-1091-cv
    Kantin v. MetLife Ins. Co


                          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 TO A
SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

                  At a stated term of the United States Court of Appeals for the Second
    Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
    City of New York, on the 1st day of June, two thousand seventeen.

    PRESENT:
                     PETER W. HALL,
                     GERARD E. LYNCH,
                     CHRISTOPHER F. DRONEY,
                                Circuit Judges.

    _____________________________________

    RONALD KANTIN,

                            Plaintiff-Appellant,

                     v.                                                16-1091-cv

    METROPOLITAN LIFE INSURANCE COMPANY,

                            Appellee,

    _____________________________________

    For Appellant:                                 DAVID G. GABOR, Esq., the Wagner Law
                                                   Group, Boston, MA.

    For Appellee:                                  SARAH E. BOUCHARD (Lauren E. Marzullo, on
                                                   the brief) Morgan Lewis & Bockius LLP,
                                                   Philadelphia, PA.
        Appeal from a judgment of the United States District Court for the Southern District of

New York (Swain, J.).

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED IN PART AND

REMANDED IN PART.

        Plaintiff-Appellant Ronald Kantin appeals the decision of the district court granting

summary judgment in favor of Defendant-Appellee Metropolitan Life Insurance Company

(“MetLife”). Kantin contends that the district court erred in concluding that he had failed to make

out a prima facie case for retaliation under the whistleblower provision of the Sarbanes-Oxley Act of

2002, 18 U.S.C. § 1514A, specifically that he failed to demonstrate an objectively reasonable belief

that the concerns he raised about pricing and a commission constituted protected activity under §

1514A. We assume the parties’ familiarity with the underlying facts, procedural history, and issues

on appeal.

        This Court reviews grants of summary judgment de novo. McBride v. BIC Consumer Prods. Mfg.

Co., 583 F.3d 92, 96 (2d Cir. 2009). We will affirm a grant of summary judgment “only where,

construing all the evidence in the light most favorable to the non-movant and drawing all reasonable

inferences in that party’s favor, ‘there is no genuine issue as to any material fact and . . . the movant

is entitled to judgment as a matter of law.’” Id. (omission in original) (quoting Fed. R. Civ. P. 56(c)).

        Section 1514A of Title 18 is intended to “protect[] employees when they take lawful acts to

disclose information or otherwise assist in detecting and stopping actions which they reasonably

believe to be fraudulent.” Bechtel v. Admin. Review Bd., 710 F.3d 443, 446 (2d Cir. 2013) (internal

quotation marks and ellipsis omitted). The statute specifically provides that a publicly traded

company cannot “discharge, demote, suspend, threaten, harass, or in any other manner discriminate

against an employee in the terms and conditions of employment” because the employee:
                                                 2
               provide[s] information, cause[s] information to be provided, or
               otherwise assist[s] in an investigation regarding any conduct which
               the employee reasonably believes constitutes a violation of section
               1341 [mail fraud], 1343 [wire fraud], 1344 [bank fraud], or 1348
               [securities fraud], any rule or regulation of the Securities and
               Exchange Commission, or any provision of Federal law relating to
               fraud against shareholders . . . .

18 U.S.C. § 1514A(a)(1).

       To prevail on a claim for retaliation under § 1514A, a plaintiff must demonstrate that “(1) he

or she engaged in a protected activity; (2) the employer knew that he or she engaged in the protected

activity; (3) he or she suffered an unfavorable personnel action; and (4) the protected activity was a

contributing factor in the unfavorable action.” Nielsen v. AECOM Tech. Corp., 762 F.3d 214, 219 (2d

Cir. 2014)). “[R]elief pursuant to § 1514A turns on the reasonableness of the employee’s belief that

the conduct violated one of the enumerated provisions” of the statute. Id. at 221. “A reasonable

belief contains both subjective and objective components,” id. at 221, and “cannot exist wholly

untethered from [the] specific [enumerated] provisions.” Id. at n.6. “That is to say, a plaintiff must

show not only that he believed that the conduct constituted a violation, but also that a reasonable

person in his position would have believed that the conduct constituted a violation,” id. (internal

quotation marks omitted), of one of the enumerated provisions.

       Here, Kantin’s complaints did not constitute protected activity under § 1514A, as Kantin has

failed to demonstrate an objectively reasonable belief that the conduct complained of constituted a

violation of one of the enumerated provisions. While Kantin argues that he was fired for raising

concerns about MetLife’s “flawed products,” the commission payment and pricing irregularities to

which he adverts simply do not sound in fraud and are wholly unrelated to any of the provisions

enumerated in § 1514A. Cf. Sharkey v. JPMorgan Chase & Co., 660 F. App’x 65, 66 (2d Cir. 2016)

(holding that factfinder could conclude from the record evidence that the plaintiff had demonstrated

requisite reasonable belief of fraudulent activity where she formally recommended that defendant
                                                    3
end its relationship with client whom she believed, based on specific evidence, might have engaged

in illegal money laundering).

         Here, despite Kantin’s belief that the receipt of the commission payment might be

considered “unethical,” he nonetheless admitted that he himself did not believe the payment was

illegal. He has therefore failed to demonstrate a subjective belief that the commission payment

violated an enumerated provision of § 1514A.

         Kantin also argues that his complaints about the pricing of certain price “cells” for a

particular life insurance product raised questions of illegal activity.1 But these claims also fail. While

Kantin identified pricing “anomalies” in these cells, in the sense that the pricing could be expected

to generate profits outside the expected range of profitability for the product as a whole, he has

failed to demonstrate that a reasonable person would believe that such pricing abnormalities violated

one of the provisions enumerated in § 1514A. There are no allegations that MetLife defrauded

shareholders or intended to deceive clients based on these three rare pricing hypotheticals. Indeed,

as with the commission payment, Kantin acknowledges that he himself did not believe that two of

the pricing anomalies created any legal issue. In an attempt to show that pricing anomalies might

constitute a violation of an enumerated provision, Kantin argues that the sale of one of the policies

in question to a couple in which the husband was 28 years older than the wife (in a particular

configuration of health categories) could violate FINRA Rule 2111 prohibiting the sale of unsuitable

securities because the same benefits could be achieved for most couples by selling a cheaper MetLife

policy to the wife alone. See FINRA Rule 2111. However, Kantin admitted that he does not know

of any instance in which such an unsuitable policy was sold to anyone, and that he himself “would


1 The product involved a joint life insurance policy on a married couple. The premiums for the policy would be based

on variables including the age, sex, and health of each partner. The record reflects that there were over one million
“cells” reflecting different combinations of these variables.

                                                           4
never” sell a joint policy when the individual policy would be more appropriate. App’x at 19. The

mere existence of an insurance product that would be unsuitable if sold to a particular customer

because a different product from the same company would be more appropriate for that customer

could not reasonably be believed to constitute a fraud, in the absence of any evidence that such a

policy was sold to such a customer, or intended to be sold to her. Cf. Nielsen, 762 F.2d at 223

(holding that the disclosure of “potential shareholder fraud” is plainly “insufficient as a matter of law

to make out a claim under § 1514A” (emphasis added and internal quotation marks omitted)).

Kantin has failed to make an adequate showing he had an objectively reasonable belief that MetLife

had engaged in some type of fraudulent activity.

        We have considered all of Kantin’s remaining arguments on appeal and determine they are

without merit. For the foregoing reasons, the judgment of the district court is AFFIRMED with

respect to Kantin’s federal claims, and REMANDED for the limited purpose of allowing the

district court to clarify whether its dismissal of Kantin’s state law claims was on the merits or was a

discretionary declination to exercise supplemental jurisdiction over them pursuant to 28 U.S.C. §

1367(c)(3).




                                                         FOR THE COURT:
                                                         Catherine O’Hagan Wolfe, Clerk




                                                    5
