Can the Chief Compliance Officer of a Hedge Fund Manager be Terminated for Investigating a Potential Compliance Violation by the Manager's Principal, CEO or CIO?

On December 29, 2010, the First Department of the New York State Appellate Division reversed a trial court order and dismissed a breach of implied contract claim brought by Joseph Sullivan, the Chief Compliance Officer of hedge fund manager Peconic Partners LLC, against his former employer and its CEO, William F. Harnisch.  Sullivan had accused Harnisch of terminating his at-will employment in retaliation for his investigation into Harnisch's alleged "front running" scheme.  In dismissing this claim, the Appellate Division recognized that the Peconic Code of Ethics, which Sullivan was required to follow, required "on pains of termination" that he investigate that alleged violation.  Nonetheless, the Appellate Division found that this language did not create a contractual promise not to terminate Sullivan, and that no recognized exception to the employment-at-will doctrine otherwise protected him from termination without cause.  We detail the background of the action and the court's pertinent legal analysis.  Also, we provide a critical analysis of the opinion, discuss its implications for whistleblower law and practice and identify a key provision that must be included in hedge fund manager compliance manuals and codes of ethics in order to protect the chief compliance officer.

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