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Fabian v. BGC Holdings, LP

Court of Appeals of Illinois, First District, Sixth Division

December 26, 2014

LARRY D. FABIAN, Plaintiff-Appellant,

Page 308

Appeal from the Circuit Court of Cook County. No. 2013 L 011756. Honorable Patrick J. Sherlock, Judge, Presiding.

For Appellant(s): Daniel J. Voelker, Alexander N. Loftus, Voelker Litigation Group, Chicago, IL.

For Appellee(s): James M. Witz, Jennifer Schilling, Catherine S. Linderman, Littler Mendelson, P.C., Chicago, IL.

PRESIDING JUSTICE HOFFMAN delivered the judgment of the court, with opinion. Justices Hall and Rochford concurred in the judgment and opinion.


Page 309


[¶1] The plaintiff, Larry D. Fabian, appeals from the circuit court order which dismissed, with prejudice, count I of his first amended complaint against the defendant, BGC Holdings, LP (BGC) pursuant to section 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2012). In the dismissed count, the plaintiff alleged, in relevant part, that BGC violated the Illinois Wage Payment and Collection Act (Act) (820 ILCS 115/1, et seq. (West 2012)) when it refused to pay him certain compensation that it owed upon the termination of his employment. For the reasons that follow, we reverse the judgment of the circuit court and remand the matter for further proceedings.

[¶2] On December 27, 2013, the plaintiff filed his first amended complaint alleging the following facts. In July 2001, the plaintiff was hired by Cantor Fitzgerald as a broker at the Chicago Mercantile Exchange (CME). In 2007, he was transferred to Cantor Fitzgerald's spinoff firm, BGC. BGC is a holding company for financial trading entities and is organized as a Delaware limited partnership with its principal place of business in New York. " BGC GP, LLC" is the listed general partner, and " Cantor Fitzgerald, L.P." is listed as a limited partner.[1] In 2008, the plaintiff entered into an " Agreement of Limited Partnership of BGC Holdings, L.P., Amended and Restated as of March 31, 2008" (hereinafter " partnership agreement" ) with BGC wherein he became " Founding Partner Number 69." Under the terms of the partnership agreement, a founding partner was a class of limited partnership interest holding " founding partner interests," including " founding partner units," " grant units," and " high distribution units." The plaintiff alleged that, while employed with BGC, he earned 100,393 founding partner units as a form of compensation which, upon this termination, could be converted into " BGC Partners Class A Common Stock" (hereinafter " common stock" )

[¶3] On March 27, 2009, the plaintiff terminated his employment with BGC and began working for another securities firm. Four days later, the plaintiff initiated an arbitration proceeding before the CME in which he was awarded $121,758 in commissions owed to him by Cantor Fitzgerald. The issues of the number of his founding partner units and common stock shares through BGC to which he was entitled were not decided by the arbitration committee.

[¶4] According to the first amended complaint, BGC informed the plaintiff in a letter dated March 6, 2013, that he forfeited all but 3,188 of his founding partner units because he left to work for a competitor in violation of the partnership agreement's non-compete clause. The letter further stated that the plaintiff's 3,188 founding partner units were sold and the proceeds were applied toward the unfunded

Page 310

balance of his trading account, which still had a remaining unfunded balance. The plaintiff alleged that, on August 22, 2013, he made a written demand upon BGC to liquidate his remaining 97,205 founding partner units or the equivalent common stock and send him the proceeds. He further alleged that BGC's statements of his holdings did not show that any of his shares had been forfeited. In a September 17, 2013, response letter, BGC disputed the number of total founding partner units the plaintiff claimed that he accrued and continued asserting its position that he forfeited any remaining founding partner units when he violated the partnership agreement's non-compete provision.

[¶5] Count I of the first amended complaint, directed at BGC, BGC Partners, Inc., Webster and Trow, alleged that they knowingly violated the Act by refusing to liquidate the remaining 97,205 founding partner units owed by the plaintiff, causing him damages in excess of $860,856.35. Based essentially on the same allegations, the plaintiff also asserted common law claims against BGC for breach of contract (count II), breach of fiduciary duty (count III), and conversion (count IV), as well as two counts seeking declaratory judgments (counts VII and VIII). Additionally, the plaintiff alleged a claim under the Act ...

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