UNITED ST A TES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------x
ILEANA DIAZ,
Plaintiff,
-against-
TRANSATLANTIC REINSURANCE
COMPANY,
Defendant.
------------------------------------x
GEORGE B. DANIELS, United States District Judge:
Plaintiff Ileana Diaz filed this action on February 22, 2016 against Defendant Transatlantic
Reinsurance Company ("TransRe") under the anti-retaliation provisions of the Dodd-Frank Act,
15 U.S.C. § 78u-6(h); the Sarbanes-Oxley Act ("SOX"), 18 U.S.C. § 1514A; the Family Medical
Leave Act ("FMLA"), 29 U.S.C. § 2615(a)(2); the New York State Human Rights Law
("NYSHRL"), N.Y. Exec. Law § 296 et seq.; and the New York City Human Rights Law
("NYCHRL"), N.Y.C. Admin. Code§ 8-107. Plaintiff also brings disability discrimination claims
under both the NYSHRL and NYCHRL, as well as a common law breach of contract claim.
In her Complaint, Plaintiff, a current employee of Defendant for at least nine years, asserts
that she has, in the course of her almost nine-year tenure, been subjected to discrimination
stemming from her treatment by Defendant upon taking medical leave, as well as to retaliation
resulting from her complaints to management about her supervisor, the Executive Vice President
("Executive VP") and Chief Claims Officer, whose responsibilities included oversight of
Defendant's Human Resources Department. (Compl., ECF No. 1, ~~ 72-114.) As a result of the
Defendant's course of action, Plaintiff alleges economic loss, severe mental anguish, and
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emotional distress, pain, and suffering. (See, e.g., Compl. ii 114.) Plaintiff seeks declaratory and
injunctive relief~ reinstatement to the position she would have occupied but for Defendant's alleged
wrongful employment actions, compensatory and punitive damages plus prejudgment interest,
expert and attorneys' fees, as well as any other "just and proper" relief. (Compl., Prayer for Relief.)
Defendant moves to dismiss the First and Seventh Causes of Action of the Complaint for
failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil
Procedure12(b)(6). (Mot. to Dismiss, ECF No. 12; Def.'s Mem. in Supp. of Mot. to Dismiss
("Mem."), ECF No. 12, at 1.) 1
Defendant's partial motion to dismiss is GRANTED. Plaintiffs First Cause of Action
alleges that Defendant violated the whistle blower protection provision of the Dodd-Frank Act and
the Sarbanes-Oxley Act by retaliating against her when she disclosed to Defendant's Compliance
Department her concerns about the Executive VP's potential conflicts of interest. Plaintiffs
Seventh Cause of Action for breach of contract is based on an alleged violation of the Company's
Codes of Conduct, which prohibit retaliation against employees who report violations of the Codes
in good faith.
I. FACTUAL BACKGROUND
Defendant, a reinsurance company, is a wholly-owned subsidiary of Transatlantic Holding,
Inc., which is, in turn, a wholly-owned subsidiary of Allegheny Corporation, a publicly held
corporation that issues multiple classes of securities that is subject to §§ 12 and 15(d) of the
Securities and Exchange Act of 1934. (Compl. ii 6.) Defendant hired Plaintiff as a Senior
Reinsurance Claims Examiner in July 2006. (Id. iJ 8.) When Defendant promoted Plaintiff to
1 The motion was fully submitted following the filing of Plaintiff's Opposition brief, ("Opp'n," (ECF No.
79)), and Defendants' Reply brief("Reply," (ECF No. 81)).
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Assistant Manager of the Claims Department to oversee the 1985 and Prior Claims Unit in
September 2013, Plaintiff reported up a chain of command to the Claims Manager, who reported
to the Executive VP. (Id. ~ 9-10.)
According to Plaintiff, among those whose work she supervised in her capacity as Assistant
Manager of the Claims Department were the ex-wife of the Executive VP's husband and a cousin
of the Executive VP, who Defendant employed as a Senior Claims Examiner at the time of
Plaintiffs promotion. (Id. iJ 11.) Defendant also used the Executive VP's husband's law firm to
perform work "for Defendant on litigation matters," and Plaintiff alleges that she was "ultimately
responsible for supervising [that] work ... and approving bills and invoices .... "(Id.)
A. Alleged Preferential Treatment and Plaintifrs Demotion
Plaintiff alleges a number of examples involving the Executive VP's relatives that Plaintiff
contends constitute their preferential treatment by the Executive VP, giving rise to a purported
conflict of interest. (Id. ~~ 18-22.) Such examples include that the ex-wife "did not have the
experience and qualifications that Defendant typically requires for Claims Examiners, yet she is
presumably paid a Claims Examiner salary." (Id. ~ 20.) Similarly, "when conducting calendar
year 2013 performance appraisals for [the cousin], Plaintiffs supervisor [the Claims Manager]
required Plaintiff to change [the cousin's] rating from a 4 to a 5, the highest possible rating,
presumably at the request of [the Executive VP] because [the Claims Manager] rarely worked with
[the cousin] and had no basis to support changing [the cousin's] rating." (Id. ~ l 8e.)
In November 2014, Plaintiff raised her concerns with the Executive VP at a meeting to
discuss Plaintiffs management of the 1985 and Prior Unit. (Id. ~~ 23-25.) Plaintiff received
negative feedback about her management of the unit, but was offered the chance to stay in her
position, "provided that [she] come up with a 'blueprint' of how [she] was going to 'turn things
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around."' (Id. iJ 24-26.) In the alternative, Plaintiff received an offer to manage another unnamed
unit within the Claims Department. (Id. iJ 27.) One week later, Plaintiff elected to move to the
other department without knowing which department it was because "she felt her
management ... had already been undermined by [the Executive VP's] preferential treatment of
[the cousin]." (Id. ii 29.) According to Plaintiff, the department to which she was reassigned, the
Fast Track Unit, "processed uncontested and straightforward claims." (Id. ii 31.) She therefore
considered this a demotion. (Id.)
B. Plaintiff's Reports to Compliance Directors
Plaintiff alleges that in December 2014, she reported to Defendant's Compliance Director
these conflict of interest concerns regarding the Executive VP "assigning litigations [sic] to and
ultimately being responsible for approving invoices for her husband's law firm." (Id. iii! 12-14,
38.) According to Plaintiff, because the Executive VP determined which reinsurance matters
Defendant would litigate, the Executive VP would personally benefit from an increase in matters
or fees paid to her husband's law firm. (Id. iJ 12) Plaintiff contends that in 2014, Defendant paid
the law firm more than $13 million in legal fees, and as of the time she first reported her concerns
to Defendant's Compliance Department, Plaintiff was not aware of any procedures to address the
issues surrounding the law firm until June 2015, when the Defendant began to require that its legal
department, not the Executive VP, approve all invoices to the husband's law firm. (Id. iii! 13-14,
17.)
Plaintiff further alleges she again spoke with her Compliance Director and the Human
Resources Director who reports to the Executive VP, on January 5, 2015. (Id. iJ 40.) Instead of
interviewing Plaintiff's colleagues in the Claims Department, as Plaintiff contends she requested,
they merely spoke to the Executive VP to investigate Plaintiff's reports, and concluded that the
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husband's ex-wife and the cousin's employment did not constitute a conflict of interest. (Id.~~ 40-
41.)
Plaintiff also alleges that in March 2015, she made an official complaint to Defendant's
parent company, Alleghany, via its Compliance Hotline, (id. ~ 51 ), and, on April 22, 2015, met
with Alleghany's Chief Compliance Officer to give more detail about the apparent conflicts of
interest. (Id.~ 52-53.) Plaintiff also "expressed concern about ... the effect [the Executive VP's
purported conflicts of interest] could have on Alleghany's shareholders" and "on Defendant's
reputation in the reinsurance industry," and that the favoritism shown was motivated by racial or
national origin bias against Plaintiff who is Puerto Rican. (Id. ~~ 55, 57.)
C. Alleged Retaliation Against Plaintiff
Plaintiff contends that the Defendant's Director, Executive Officer and Senior Financial
Officer Code of Business Conduct and Ethics ("Senior Officer Code of Conduct") encourages
employees to report potential violations, including conflicts of interest, (id. ~ 3 7), and prohibits
retaliation against reporting employees. (Id. ~ 36.) Alleghany also has a Code of Conduct with
similar provisions. (See id. ~~ 45-50.) Upon Plaintiffs information and belief, the Executive VP
was aware of her complaints to both Defendant's and Alleghany's compliance groups. (See id. ir~
59-60.) Plaintiff alleges that she communicated as much to Alleghany's Chief Compliance Officer
in April 2015, stating that since Plaintiffs December 2014 and January 2015 reports to
Defendant's Compliance Department, the Executive VP had denied Plaintiff a bonus/salary
increase, questioned her expense reports, physically isolated her from colleagues, and generated
pretextual reasons to discipline Plaintiff. (Id. ~ 58.) Plaintiff also alleges that after her
conversation with Alleghany, the Executive VP had "angry outbursts towards Plaintiff' on "an
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almost daily basis," gave Plaintiff impossible-to-meet deadlines, and issued an "unfairly
characterized" performance warning on May 7, 2015. (Id. if 60.)
According to Plaintiff, at her physician's advice, she took designated FMLA leave starting
May 8, 2015 to "recover from the stress, anxiety, and depression that resulted from [the Executive
VP's] retaliatory treatment .... " (Id. if 61.) Plaintiff alleges that on August 14, 2015, she
attempted to find out the exact date her FMLA leave was scheduled to end, but was not given any
information by Defendant's representative. (Id. if 65.) Defendant then notified Plaintiff on August
19, 2015 that "because she had allegedly not provided certain information [to an administrator],
Defendant was treating Plaintiff has having resigned her employment." (Id. if 66.) Plaintiff also
alleges that Defendant only reinstated Plaintiff's employment, albeit in a less senior position, after
Plaintiff's attorney intervened. (Id. iii! 68-70.) Plaintiff contends that since her return to the
company, she continues to experience increased scrutiny and negative performance reviews from
the Executive VP, ostensibly as retaliation for Plaintiff's previous reports. (Id. if 71.)
II. LEGAL STANDARD
To survive a motion to dismiss, "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 (2009) (quoting Bell At!. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plaintiff
must demonstrate "more than a sheer possibility that a defendant has acted unlawfully"; stating a
facially plausible claim requires pleading facts that enable the court "to draw the reasonable
inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. Thus,
the factual allegations pleaded "must be enough to raise a right to relief above the speculative
level." Twombly, 550 U.S. at 555.
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A district court must first review a plaintiffs complaint to identify allegations that,
"because they are no more than conclusions, are not entitled to the assumption of truth." Iqbal,
556 U.S. at 679. The court then considers whether Plaintiffs remaining well-pleaded factual
allegations, assumed to be true, "plausibly give rise to an entitlement to relief." Id.; see also
Targum v. Citrin Cooperman & Co., LLP, No. 12 CIV. 6909, 2013 WL 6087400, at *3 (S.D.N.Y.
Nov. 19, 2013). In deciding the 12(b)(6) motion, the court accepts the complaint's well-pleaded
factual allegations as true and draws all reasonable inferences in the non-moving party's favor.
See Ahmad v. Morgan Stanley & Co., 2 F. Supp. 3d 491, 495 (S.D.N.Y. 2014) (citing ATS!
Commc 'ns, Inc. v. Shaar Fund, Ltd, 493 F.3d 87, 98 (2d Cir. 2007)).
"In deciding a motion to dismiss under Rule 12(b)(6), the court may refer 'to documents
attached to the complaint as an exhibit or incorporated in it by reference, to matters of which
judicial notice may be taken, or to documents either in plaintiffs' possession or of which plaintiffs
had knowledge and relied on in bringing suit."' Fishbein v. Miranda, 670 F. Supp. 2d 264, 271
(S.D.N.Y. 2009), ajf'd sub nom. Silverman v. Teamsters Local 210Affiliated Health & Ins. Fund,
761 F.3d 277 (2d Cir. 2014) (quoting Brass v. Am. Film Tech., Inc., 987 F.2d 142, 150 (2d Cir.
1993)); see also Hayes v. Coughlin, No. 87 Civ. 7401, 1991 WL 220963, at* 1 (S.D.N.Y. Oct. 16,
1991) ("Papers outside a complaint may be incorporated by reference into the complaint when
such papers are referred to within the body of the complaint.").
III. THE DODD-FRANK ACT AND SARBANES-OXLEY ACT ARE
INAPPLICABLE TO PLAINTIFF'S CLAIM.
Plaintiffs First Cause of Action alleges that Defendant violated the Dodd-Frank Act's
"whitstleblower" protection provisions because she was retaliated against when she engaged in
activities protected by the Dodd-Frank and Sarbanes-Oxley ("SOX") Acts. (See Compl., ~~ 72-
78.) Defendant correctly contends that this cause of action should be dismissed because Plaintiff
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did not engage in activity protected by either Dodd-Frank or SOX, i.e., make disclosures to the
SEC, participate in an SEC investigation, or make disclosures to internal supervisors related to
mail, wire, or securities fraud. (Mem., at 7-8.)
Under the Dodd-Frank Act, "[t]he term 'whistleblower' means any individual who
provides, or 2 or more individuals acting jointly who provide, information relating to a violation
of the securities laws to the Commission, in a manner established, by rule or regulation, by the
Commission." 15 U.S.C. § 78u-6(a)(6). Furthermore, employers may not
discharge, demote, suspend, threaten, harass, directly or indirectly, or in any
other manner discriminate against, a whistleblower in the terms and
conditions of employment because of any lawful act done by the
whistle blower-
(i) in providing information to the Commission m
accordance with this section;
(ii) in initiating, testifying in, or assisting in any
investigation or judicial or administrative action of the Commission
based upon or related to such information; or
(iii) in making disclosures that are required or protected
under the Sarbanes-Oxley Act of 2002 (15 U.S.C. § 7201, et seq.),
this chapter, including section 78j-l(m) of this title, section 1513(e)
of Title 18, and any other law, rule, or regulation subject to the
jurisdiction of the Commission.
15 U.S.C. § 78u-6(h)(i-iii). In turn, the relevant provision of SOX protects employees from
being discharged who:
( 1) ... provide information ... 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 [SEC], or any provision of
Federal law relating to fraud against shareholders, when the information ... is provided to
... (C) a person with supervisory authority over the employee (or such other person
working for the employer who has the authority to investigate, discover, or terminate
misconduct) ....
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Yang v. Navigators Grp., Inc., 18 F. Supp. 3d 519, 527-28 (S.D.N.Y. 2014) (citing 18 U.S.C. §
1514A(a)(l )(C)). Thus, to engage in an activity protected under SOX, a plaintiff "must show that
ls ]he held a reasonable belief that Defendants were engaged in conduct that violated one of the
enumerated.federal laws" of§ 1514A. See Ashmore v. CG! Grp. Inc., 138 F. Supp. 3d 329, 342
(S.D.N.Y. 2015) (emphasis added). Additionally, a plaintiff's belief about those violations of
relevant law must be both subjectively and objectively reasonable. Nielsen v. AECOM Tech.
Corp., 762 F.3d 214, 221 (2d Cir. 2014) (defining "objective" as whether "a reasonable person in
[plaintiff's] position would have believed that the conduct constituted a violation" of the federal
securities laws) (citing Livingston v. Wyeth, Inc., 520 F.3d 344, 352 (4th Cir. 2008)); Leshinsky v.
Te/vent Gl1'. SA., 942 F. Supp. 2d 432, 444 (S.D.N.Y. 2013) (citing Welch v. Chao, 536 F.3d 269,
275 (4th Cir. 2008)).
Plaintiff's allegations ultimately fail to meet the l 2(b )(6) standard for a whistle blower
retaliation claim because Plaintiff has not alleged any facts regarding the Executive VP and
Defendant's conduct that could support an objectively reasonable belief that such conduct
constitutes securities fraud. See Nielsen, 762 F.3d at 221. None of her statements to Defendant or
Alleghany's Compliance Departments involved providing false or fraudulent information to
shareholders or the public. (See Comp!. if 55.) Nor does Plaintiff allege any intent to deceive
shareholders. See Novak v. Kasaks, 216 F .3d 300, 309 (2d Cir. 2000) (holding that allegations of
GAAP violations or accounting irregularities, standing alone, are insufficient to state a securities
fraud claim and that "only where such allegations are coupled with evidence of 'corresponding
fraudulent intent,' might they be sufficient") (citing Steve/man v. Alias Research Inc., 174 F.3d
79, 84 (2d Cir. 1999); Chill v. General Elec. Co., 101 F.3d 263, 270 (2d Cir. 1996)).
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While Plaintiff claims that "[i]t is now well accepted that courts should construe Section
806 [or Section 15 l 4A] broadly," Plaintiff has taken that statement out of context in support of her
allegations. (See Opp'n, at 9.) A plain reading of the relevant Dodd-Frank and SOX provisions
clearly show that the conduct reported by a whistleblower must deal with a violation of not any
federal law, but of federal securities law or the enumerated crimes of mail and wire fraud. See 18
U.S.C. § 1514A(a)(l)(C) (providing that violations covered are those involving "any rule or
regulation of the [SEC], or any provision of Federal law relating to fraud against shareholders")
(emphasis added); 15 U.S.C. § 78u-6(h)(i-iii) (specifically noting that protected conduct must
report violations of "any other law, rule, or regulation subject to the jurisdiction of the [Securities
and Exchange] Commission").
As Defendant correctly argues, Plaintiffs Dodd-Frank claim is solely premised upon a
purported non-compliance with the company's internal conflict of interest policy and the
employment of the Executive VP's husband's relatives. (See Reply, at 3.) Even if Plaintiff may
have believed she was reporting some sort of wrongdoing2 when she made complaints to
Defendant and Alleghany's Compliance Departments, the conduct she reported was not covered
by Dodd-Frank's subsection (iii). See Leshinsky, 942 F. Supp. 2d at 444 (reasoning that by
2 Plaintiff attempts for the first time in her Opposition papers to argue the following:
[W]hile [she] did not specifically mention mail or wire fraud in her complaints to Defendant, her
complaints implicate these sections because, if [the Executive VP's] conduct constituted fraud, it
presumably involved the use of mail or wires to achieve this fraud.
(Opp'n at 15.) However, because Plaintiff failed to raise allegations of mail or wire fraud properly in her
Complaint, they are not properly before this Court and need not be considered. See Franchino v. Roman
Catholic Archdiocese of New York, No. 15 CV 6299, 2016 WL 3360525, at *7 n.11 (S.D.N.Y. June 15,
2016) (citing K.D. v. White Plains Sch. Dist., 921 F. Supp. 2d 197, 209 n. 8 (S.D.N.Y. 2013) (holding that
plaintiff "'cannot amend [his] complaint by asserting new facts or theories for the first time in opposition to
[a] motion to dismiss")). In any event, such a conclusory allegation would not cure the Complaint's
deficiency in this regard, and therefore such an amendment would be futile.
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"'extending the reach of the whistleblower protection to violations of any provision of federal law
relating to fraud against securities shareholders,' [§ 1514A] clearly protects employees who
report any of the enumerated federal crimes") (emphasis added) (citing 0 'Mahony v. Accenture
Ltd., 537 F. Supp. 2d 506, 517 (S.D.N.Y. 2008)). Plaintiff's bald assertions that she "expressed
concern about ... the effect [the purported conflicts of interest] could have on Alleghany's
shareholders" and "on Defendant's reputation in the reinsurance industry" are precisely the type
of conclusory statements that cannot sustain a§ 1514A claim. See Andaya v. Atlas Air, Inc., No.
10 CV 7878, 2012 WL 1871511, at *4 (S.D.N.Y. Apr. 30, 2012) ("What is missing from these
allegations is criminal conduct, shareholder fraud, or fraudulent intent.") (citing Novak, 216 F.3d
at 309); (see Compl. ~ 55).
Defendant's motion to dismiss Plaintiff's Dodd-Frank and SOX whistleblower retaliation
claim is therefore GRANTED.
IV. THE ALLEGHANY CODE OF CONDUCT AND SENIOR OFFICER CODE
ARE NOT CONTRACTS.
Plaintiff Seventh Cause of Action is a breach of contract claim based on the Alleghany
Code of Conduct and on the TransRe Senior Officer Code. (See Comp!.~~ 112-14.) Specifically,
Plaintiff claims that Defendant breached an obligation under the Code of Conduct to "prevent
retaliation against any employee who, in good faith, voices concerns, reports violations, or
participates in an investigation." (See id. ~ 50; Deel. of Marc E. Bernstein ("Bernstein Deel."),
Ex. B, ECF No. 13, at 5, 26.) Plaintiff also claims that Defendant breached the TransRe Senior
Officer Code's similar promise to protect her from retaliation. (Opp'n, at 16 (citing Comp!.~ 36)
("[TransRe] will not tolerate retaliation for violations of this Code made in good faith.").)
Under New York law, a breach of contract claim is established through proof of "(l) an
agreement, (2) adequate performance by the plaintiff, (3) breach by the defendant, and (4)
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damages." Fischer & Mandell, LLP v. Citibank, NA., 632 F.3d 793, 799 (2d Cir. 2011) (internal
citations omitted). However, New York law is also clear that employment guides or codes of
conducts may not provide the basis for breach of contract claims when they contain language of
disclaimer. Lobosco v. New York Tel. Co.INYNEX, 96 N.Y.2d 312, 317 (2001) ("Routinely issued
employee manuals, handbooks and policy statements should not lightly be converted into binding
employment agreements ... It would subject employers who have developed written policies to
liability for breach of employment contracts upon the mere allegation of reliance on a particular
provision. Clearly that cannot be, especially in light of conspicuous disclaiming language."); see
also Baron v. Port Auth. of New York & New Jersey, 271 F.3d 81, 86 (2d Cir. 2001) (rejecting
appellant's argument that "a general disclaimer in an employee handbook does not as a matter of
law foreclose a finding that specific provisions within the handbook are 'express limitations'");
Sharkey v. JP. Morgan Chase & Co., No. 10 Civ. 3824, 2011 WL 135026, at *9 (S.D.N.Y. Jan.
14, 2011) ("Where a manual or policy statement contains a disclaimer that nothing in the manual
is intended to create a contract, an employee cannot bring a breach of contract claim based on the
manual or policy statement.") (citing Baron, 271 F.3d at 85~86). Furthermore, "[a]n employee
seeking to rely on a provision arguably creating a promise must also be held to reliance on the
disclaimer." Lobosco, 96 N.Y.2d at 317.
Most fatal to Plaintiffs breach of contract claim is the language of the Alleghany Code of
Conduct itself, which states that it is "not a contract of employment" and that nothing in the
company's policies "should be construed as a promise of any kind, or creating a contract regarding
wages or other working conditions." (See Bernstein Deel., Ex. B, ECF No. 13, at 23.) While
Plaintiff contend that the Senior Officer Code does not contain such language of disclaimer, (see
Opp'n at 16 n.2), the fact that the Alleghany Code of Conduct applies to the "Alleghany
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Corporation and its subsidiaries worldwide," rebuts Plaintiffs argument. Additionally, as
Defendants correctly note, Plaintiff does not allege that she did not understand this language
located in the "Employment at Alleghany" section of the Code, nor does she allege that she relied
upon any provision of the Codes. (See Reply, at 8.)
Therefore, Plaintiff has failed to allege breach of contract claims that survive a motion to
dismiss pursuant to 12(b)(6). Defendant's motion to dismiss this claim is therefore GRANTED.
V. CONCLUSION
Plaintiff has failed to state a claim for whistle blower retaliation in violation of the Dodd-
Frank Act and Sarbanes-Oxley Act or a claim for breach of contract. Defendant's motion to
dismiss the First and Seventh Causes of Action of the Complaint is GRANTED. The First and
Seventh Causes of Action are hereby dismissed.
The Clerk of Court is directed to close the motion at ECF No. 11.
Dated: New York, New York
June 21, 2016
13
SO ORDERED.
key~
RB.DANIELS
United States District Judge
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