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A federal judge in New York granted summary judgment for a defunct hedge fund in one of the few decisions addressing whether a type of immune deficiency qualifies as a disability under the Americans with Disabilities Act. U.S. District Court Judge George Daniels in New York City on Feb. 9 dismissed a breach-of-contract and discrimination suit against Arience Capital Management L.P. brought by Rebecca Bar-Tur, a former senior analyst and limited partner who suffered from common variable immunodeficiency. The condition is characterized by a reduction in antibodies, making it more likely for someone diagnosed with it to get sick than the average person. The National Institutes for Health reports that one in 30,000 people suffers from the condition. Neither side disputed that Bar-Tur’s common variable immunodeficiency was a physical impairment since it inferred with breathing, sleeping and speaking. But Daniels said she failed to show that it “substantially impacts” her ability to perform those functions. While she claimed she could not sleep, Daniels noted that she also testified that she usually went for runs after work and did yoga on Fridays. “Because Bar-Tur has offered insufficient evidence in support of her claim that she has a substantial impairment of a major life activity, [Arience's] summary judgment motion as to her ADA discrimination is granted,” Daniels wrote. While only a district court decision, the case could provide guidance in future cases involving the condition, said Lloyd Chinn, a Proskauer Rose partner in New York who represented Arience Capital. Daniels said the court was aware of only one other decision on whether the condition qualified under federal law — a 1997 ruling for New York Life Inc. by a Dallas federal district judge holding that it did not. “In terms of looking for precedent, now there are two cases on this issue,” Chinn said. Todd Gutfleisch of Wechsler & Cohen, who represented Bar-Tur, said his client was considering whether to appeal. He declined further comment. Arience Capital, a hedge fund founded in 2002, closed in December 2008 due to the volatile economy. A month earlier, it discharged Bar-Tur, who had joined the hedge fund in February 2007 from Morgan Stanley. Initially, Bar-Tur, who was a limited partner in the fund, was highly compensated. In 2007, she earned $1.92 million, part of which came from a percentage of the fees the hedge fund earned from managing clients’ funds. She suffered from health problems. In February 2008, after months of initially believing she was suffering from recurring sinus infections, she told the hedge fund’s managing partner, Caryn Seidman-Becker, about the diagnosis. Seidman-Becker in September 2008 told Bar-Tur she needed to put more time into her job and that she could either end her employment or have her role redefined by being demoted to a junior analyst or being put in charge of investor services. After Bar-Tur said her health and family came first, Seidman-Becker in October 2008 stripped her of her right to management fees, the decision said. She was fired after she refused to accept Arience’s terms. In 2008, she received her $225,000 annual salary but no net management fees. After being dismissed, Bar-Tur filed a discrimination complaint with the Equal Employment Opportunity Commission and then sued Arience in January 2009 in New York state court. Arience later removed the case to federal court. Following discovery, Arience moved for summary judgement in May. Daniels ruled that she provided no evidence to support her claim that Arience breached its contract with her by not paying her any management fees in 2008. The contract was clear that she was not owed any fees, since no other partner received any once Arience folded; or severance, since she was not employed at that point by the fund, Daniels said. Bar-Tur, who said she was owed $200,000 in management fees, had also claimed that the severance was management fees in disguise. But Daniels said she provided no evidence to support that claim. Nate Raymond can be contacted at [email protected].

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