         11-4476-cv
         Levion v. Societe Generale

                                 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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 20th day of November, two thousand twelve.
 5
 6       PRESENT: JOHN M. WALKER, JR.,
 7                RICHARD C. WESLEY,
 8                PETER W. HALL,
 9                         Circuit Judges.
10
11
12
13       MARTIN LEVION,
14
15                             Plaintiff-Appellant,
16
17                      -v.-                                                11-4476-cv
18
19       SOCIETE GENERALE,
20
21                             Defendant-Appellee.
22
23
24       FOR PLAINTIFF-APPELLANT:                     Thomas E.L. Dewey, Keara A.
25                                                    Bergin, Ariel P. Cannon, Chi-Ru
26                                                    Jou, Dewey Pegno & Kramarsky
27                                                    LLP, New York, NY.
28
29       FOR DEFENDANT-APPELLEE:                      Kevin B. Leblang, Norman C.
30                                                    Simon, Kramer Levin Naftalis &
31                                                    Frankel LLP, New York, NY.
32
33
1         Appeal from the United States District Court for the
2    Southern District of New York (Sullivan, J.).
3
4        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

5    AND DECREED that the judgment of the United States District

6    Court for the Southern District of New York is AFFIRMED.

7        Plaintiff Martin Levion appeals from a judgment of the

8    United States District Court for the Southern District of

9    New York (Sullivan, J.), granting Defendant Societe

10   Generale’s motion for summary judgment and dismissing

11   Levion’s claims for breach of contract and violations of New

12   York Labor Law § 193.   The district court determined that

13   Levion’s employment relationship with Societe Generale was

14   not governed by an agreement that would obligate the bank to

15   compensate Levion with an additional $3.5 million bonus in

16   2006 or a pro rata bonus in 2007, or additional bonuses

17   stemming from two other financial transactions (the so-

18   called “NDF” and “TOPD” transactions).   The panel has

19   reviewed the briefs and the record in this appeal and agrees

20   unanimously that oral argument is unnecessary because “the

21   facts and legal arguments [have been] adequately presented

22   in the briefs and record, and the decisional process would

23   not be significantly aided by oral argument.”   Fed. R. App.

24   P. 34(a)(2)(C).   We assume the parties’ familiarity with the

                                   2
1    underlying facts, the procedural history, and the issues

2    presented for review.

3        This Court reviews a district court’s grant of summary

4    judgment de novo.     See Beth Israel Med. Ctr. v. Horizon Blue

5    Cross & Blue Shield of N.J., Inc., 448 F.3d 573, 579 (2d

6    Cir. 2006).     Levion argues that Societe Generale breached

7    its agreement to award Levion a percentage-based annual

8    bonus by:     (1) improperly allocating profits from two

9    financial transactions performed by Levion’s group; (2)

10   reducing his 2006 compensation by $3.5 million in

11   anticipation of an IRS settlement; and (3) refusing to pay

12   Levion a pro rata bonus for the approximately 90 days he

13   worked during 2007.     We affirm for many of the reasons

14   discussed by the district court.

15       Neither the 1990 offer letter guaranteeing Levion a

16   bonus for that year nor the 1994 agreement specifying a

17   percentage-based bonus for Levion in 1994 and 1995 extend to

18   the disputed period here.     While Levion concedes that there

19   is no single agreement governing his compensation, even had

20   the district court identified an implied-in-fact contract

21   derived from the parties’ correspondence and course of

22   conduct, it would not obligate Societe Generale to pay


                                     3
1    Levion more than it already has.   Levion argues that he is

2    owed a percentage of his group’s net profit and loss, but he

3    does not meaningfully contest the fact that Societe Generale

4    management retained ultimate control over determining the

5    group’s profit and loss – and therefore the bonus pool.

6        This circumstance dooms Levion’s argument that Societe

7    Generale improperly allocated proceeds from two transactions

8    his group was involved in.   Likewise, the district court

9    correctly found that there was nothing to prevent Societe

10   Generale from effectively charging Levion $3.5 million for

11   the cost of a regulatory settlement caused by transactions

12   he championed.   In addition, because Levion received annual

13   “Compensation Advice” documents that restrict cash bonuses

14   to active employees on the date of payment, Levion cannot

15   sustain a claim that Societe Generale owes him a bonus for

16   work performed prior to his resignation in March 2007.      And

17   there is no evidence that an employee would be entitled to a

18   bonus based only on a partial year of net profit and loss.

19   Moreover, even if Levion were entitled to a percentage-based

20   bonus for 2007, by the end of the year his group showed a

21   loss – the bonus pool was zero.

22


                                   4
1           The district court also properly granted summary

2    judgment for Societe Generale on Levion’s claims based on

3    New York Labor Law § 193, which provides that “[n]o employer

4    shall make any deduction from the wages of an employee”

5    (subject to exceptions not relevant here).       N.Y. LAB. LAW §

6    193.    Under New York law, the term “wages” does not include

7    “certain forms of ‘incentive compensation’ that are more in

8    the nature of a profit-sharing arrangement and are both

9    contingent and dependent, at least in part, on the financial

10   success of the business enterprise.”    Truelove v. N.E.

11   Capital & Advisory, Inc., 95 N.Y.2d 220, 223-24 (2000).

12   Because any agreement that could dictate Levion’s

13   compensation would not “predicate bonus payments upon

14   plaintiff’s own personal productivity,” but instead on the

15   success of his group as a whole, New York Labor Law § 193

16   does not apply.    Id. at 224.

17          All remaining claims are without merit.

18          For the foregoing reasons, the judgment of the district

19   court is hereby AFFIRMED.

20
21                                 FOR THE COURT:
22                                 Catherine O’Hagan Wolfe, Clerk
23
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