Justice Carolyn Demarest
Plaintiff Koether, a research analyst at UBS, alleged defendant Sherry, head of high-yield trading at JP Morgan Chase, failed to make profit payments to plaintiff in contravention of a profits sharing agreement relating to their hedge fund trading business. Plaintiff also alleged that defendant violated a duty of loyalty owed to plaintiff by excluding him from participation in the profits and ownership of an investment fund known as Lucidus Capital Partners LLP. The court agreed with the defendant that, since the alleged profit sharing agreement at issue was terminable at will, as an alternative to termination, defendant had the right to modify the terms of the agreement unilaterally. The court added that plaintiff, by continuing his work despite the changed terms, is deemed to have consented to the new terms. However, the court determined that the fact that plaintiff continued to work for defendant after the change in terms does not require dismissal of the breach of contract cause of action. It noted the fact that it is unclear exactly when or how defendant informed plaintiff that he was reducing the percentage of profits he was going to pay him, or how much of those profits had been earned prior to the change in terms.
