Kenneth G. Geraghty v. Insurance Services Office, Inc.

* Hon. A. Wallace Tashima, Senior Judge, United States
Court of Appeals for the Ninth Circuit, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-2475
KENNETH G. GERAGHTY,
Appellant
v.
INSURANCE SERVICES OFFICE, INC.;
FRANK J. COYNE
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 2-08-cv-01203)
District Judge: Hon. Faith S. Hochberg
Submitted Under Third Circuit LAR 34.1(a)
February 10, 2010
Before: SLOVITER, ROTH and TASHIMA,* Circuit Judges
(Filed: March 5, 2010)
OPINION

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SLOVITER, Circuit Judge.
Before us is the appeal of Kenneth G. Geraghty from the District Court’s order
dismissing his complaint for retaliatory discharge under the New Jersey Conscientious
Employee Protection Act (“CEPA”), N.J. STAT . A NN . §§ 34:19-1 to -14, on the basis of
Geraghty’s broad release.
I.
Defendants were Insurance Services Office, Inc. (“ISO”), a company that provides
data and consulting services regarding risk, and Frank J. Coyne, ISO’s President,
Chairman, and Chief Executive Officer. Geraghty, the former Chief Financial Officer
(“CFO”) of ISO, began his employment with ISO in 2000. In December 2003, he became
a named fiduciary for a multiple employer pension plan (“Plan”) in which ISO
participated. A year later, Geraghty was among those who raised concerns that one of the
other named fiduciaries of the Plan, Robert Vagley, had a conflict of interest and was
overcharging the Plan for administrative fees. The Department of Labor began an
investigation in May 2005 and Vagley later resigned.
In July 2006, Geraghty and other named fiduciaries brought suit against Vagley
and others for ERISA violations in connection with the Plan. In February 2007, Geraghty
and other named fiduciaries requested that ISO produce additional documents in
discovery. The ERISA suit was settled in April 2008.
On March 8, 2007, Coyne terminated Geraghty’s employment with ISO. Geraghty
claims the termination was in retaliation for his filing of the ERISA complaint and for

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cooperating in the Department of Labor’s investigation. Geraghty also claims that
following his termination, ISO took additional steps to punish him, by, inter alia, failing
to offer him outplacement services, constructively terminating another ISO employee’s
assistance to him, removing language protecting him under ISO’s fiduciary insurance
policy, disputing his stock options, refusing to allow him to review certain ISO committee
meeting minutes, and improper withholding of New Jersey state income taxes.
After his termination, Geraghty, who was represented by an attorney with
undisputed extensive experience negotiating employment separation agreements,
negotiated a separation package with ISO. On April 27, 2007, after six weeks of
negotiation, Geraghty executed an “Agreement and General Release” (“Release”).
Included in that General Release of Claims was the following:
Employee knowingly and voluntarily releases and forever
discharges, to the full extent permitted by law, ISO, its
affiliates, subsidiaries, divisions, predecessors, successors and
assigns and the current and former employees, officers,
directors and agents thereof . . . of and from any and all
claims, known and unknown, asserted and unasserted,
Employee has or may have against Employer as of the date of
execution of this Agreement and General Release, including,
but not limited to, any alleged violation of: [list of thirteen
federal and state statutes and] [a]ny other federal, state or
local civil or human rights law or any other local, state or
federal law, regulation or ordinance. . . .
App. at 59-60 (emphasis added).
As consideration for signing the Release, ISO paid Geraghty approximately
$250,000. Geraghty had at least twenty-one days to review the Release with his attorney.

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Geraghty also had seven days following execution to revoke the Release.
Upon execution, Geraghty certified that:
Having elected to execute this Agreement and General
Release, to fulfill the promises and to receive the sums and
benefits in paragraph (2) above, Employee freely and
knowingly, and after due consideration, enters into this
Agreement and General Release intending to waive, settle and
release all claims he has or might have against Employer.
App. at 59.
More than seven days after execution, Geraghty sent ISO a letter stating that:
On April 27, 2007, I executed an Agreement and General
Release between ISO and me. I consulted with an attorney of
my choosing, prior to executing this Agreement and General
Release.
. . . I have at no time revoked my acceptance or execution of
that Agreement and General Release and hereby reaffirm my
acceptance of that Agreement and General Release.
App. at 63.
II.
Geraghty filed a complaint against ISO and Coyne which, after amendment,
contains claims alleging violation of CEPA, defamation, breach of contract, breach of
implied contract, and promissory estoppel. All of Geraghty’s claims, with the exception
of the CEPA claim, have been settled. ISO and Coyne filed a motion to dismiss
Geraghty’s CEPA claim under Federal Rule of Civil Procedure 12(b)(6), which the
District Court granted. Geraghty appeals, arguing that the Release did not bar his CEPA
claim and that the District Court improperly considered evidence outside of the complaint

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1 This court has jurisdiction pursuant to 28 U.S.C. § 1291.
We have plenary review over a district court’s order granting a
motion to dismiss. Werwinski v. Ford Motor Co., 286 F.3d 661,
665 (3d Cir. 2002).
2 Since the Cirillo decision, the ADEA statute contains its
own provision applicable to a release, thereby superseding the
Cirillo decision in this respect. See Long v. Sears Roebuck & Co.,
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when ruling on the Rule 12(b)(6) motion.1
III.
In granting the motion to dismiss, the District Court stated, “[t]here is no genuine
question as to whether Geraghty signed the Release knowingly and voluntarily.” App. at
7. The Court noted Geraghty’s “highly sophisticated education,” and the record shows
that he holds several degrees, including a Master of Science in Chemical Engineering
degree from the University of California at Berkeley and a Master of Business
Administration degree from Harvard University. He had significant business experience,
as prior to joining ISO he served as a senior executive elsewhere. Moreover, he was
represented by skillful counsel throughout and received $250,000 upon signing the
Release, a sum Geraghty’s brief terms “modest,” see Appellant’s Br. at 45, but which
may not be considered so by others.
This Court uses a totality of the circumstances test when considering the validity
of a release agreement. See Coventry v. U.S. Steel Corp., 856 F.2d 514, 524 (3d Cir.
1988). In Cirillo v. Arco Chem. Co., 862 F.2d 448, 451 (3d Cir. 1988), we listed those
circumstances as follows:2

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105 F.3d 1529, 1539 (3d Cir. 1997).
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(1) the clarity and specificity of the release language; (2) the
plaintiff's education and business experience; (3) the amount
of time plaintiff had for deliberation of the release before
signing it; (4) whether plaintiff knew or should have known
her rights upon execution of the release before signing it; (5)
whether plaintiff was encouraged to seek, or in fact received,
benefit of counsel; (6) whether there was opportunity for
negotiation of the terms of the agreement; and (7) whether the
consideration given in exchange for the waiver and accepted
by the employee exceeds the benefits to which the employee
was already entitled to by law.
The “totality of the circumstances” test applies to a release of both the federal claims and
those arising under New Jersey law. See Swarts v. Sherwin-Williams Co., 581 A.2d 1328,
1332 (N.J. Super. Ct. App. Div. 1990) (adopting the Third Circuit totality test).
Here, nearly every factor weighs in favor of a finding that Geraghty executed the
Release in a knowing and voluntary manner. Geraghty now attempts to circumvent the
broad language of the release, arguing that the Release failed to specify that it included
release of a CEPA claim. We agree with the District Court’s rejection of this argument.
Under New Jersey law, “the phrase ‘any and all’ allows for no exception.” Isetts v.
Borough of Roseland, 835 A.2d 330, 336 (N.J. Super. Ct. App. Div. 2003) (citing Atlantic
Cas. Ins. Co. v. Interstate Ins. Co., 100 A.2d 192, 198 (N.J. Super. Ct. App. Div. 1953));
see also Am. Lumber Corp. v. Nat’l R.R. Passenger Corp., 886 F.2d 50, 55 (3d Cir. 1989)
(finding that “all possible claims” means all claims the plaintiff asserted or could have
asserted).

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The Release was a relatively short document consisting of only four pages. It used
mostly straight-forward language releasing ISO from “any and all claims, known and
unknown, asserted and unasserted,” and when listing numerous federal and state causes
of action stated that the waiver was “including, but not limited to” those claims. App. at
59. This is clear and unambiguous language that an average person would understand to
be all-encompassing. Geraghty admitted that at the time of execution he was aware that
he might have a CEPA claim. Therefore, the clear, expansive language of the Release
and Geraghty’s own knowledge of a potential CEPA claim outweigh the failure to name
specifically the CEPA statute.
Geraghty relies on the decision in Keelan v. Bell Commc’ns Research, where the
Superior Court of New Jersey, after noting that courts in the Third Circuit had never held
that a release must specifically mention a statute to effectively bar a claim, concluded that
the employer’s failure to specifically mention CEPA by name raised an issue of material
fact regarding whether the waiver was voluntary. 674 A.2d 603, 610 (N.J. Super. Ct.
App. Div. 1996). Geraghty points to no case since Keelan in which a court has held that
a general release is unenforceable as a waiver of a CEPA claim. In contrast, courts have
enforced general releases where other remedial employment laws are not specifically
named. See Swarts, 581 A.2d at 1331, 1333 (affirming dismissal of a plaintiff’s claim
under the remedial New Jersey Law Against Discrimination (“NJLAD”) although the
release did not specifically mention NJLAD). Moreover, the Keelan court also found that

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the employee had only a short period of time to consider an important part of the release
and was potentially under duress at the time of signing. Keelan, 674 A.2d at 611-12.
Thus, the facts of Keelan are largely distinguishable.
Geraghty also tries to avoid waiver of his CEPA claim by arguing that the CEPA
claim had not accrued at the time of the Release execution. Generally, courts will not
interpret a release to bar a claim that had not accrued as of the date of signing. Bowersox
Truck Sales & Serv., Inc. v. Harco Nat’l Ins. Co., 209 F.3d 273, 279 (3d Cir. 2000).
Geraghty points to actions taken by ISO after his termination to support his contention
that his CEPA claim had not yet accrued as of the Release execution. A CEPA claim
accrues as of the date of the discharge, suspension, or demotion. See Ivan v. County of
Middlesex, 595 F. Supp. 2d 425, 467 (D.N.J. 2009). Therefore, Geraghty’s CEPA claim
accrued when he was terminated, weeks before he signed the Release.
Although Geraghty points to actions taken by ISO that constitute a pattern of
retaliatory conduct in violation of CEPA, these are secondary actions that are irrelevant
for purposes of this case. The heart of Geraghty’s CEPA cause of action accrued before
the Release was executed, when he was terminated. Any alleged actions taken by ISO
after Geraghty’s termination would not be covered by CEPA, because the statute applies
to “employees.” See N.J. STAT . A NN . § 34:19-2(b) (defining employee as an individual
who performs services under the control of an employer in return for compensation); see
Zubrycky v. ASA Apple, Inc., 885 A.2d 449, 168 n.2 (N.J. Super. Ct. App. Div. 2005)
(“CEPA does not apply to post-employment conduct.”) (citing Young v. Schering Corp.,

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660 A.2d 1153 (N.J. 1995); Beck v. Tribert, 711 A.2d 951 (N.J. Super. Ct. App. Div.
1998)). Thus, Geraghty’s CEPA claim accrued when he was terminated and was therefore
included within the language of the Release.
IV.
Finally, Geraghty contends that the District Court erred by relying on the Release
when deciding ISO’s motion to dismiss. As a general rule, when “matters outside the
pleadings are presented to and not excluded by the court, the motion must be treated as
one for summary judgment under Rule 56. All parties must be given a reasonable
opportunity to present all the material that is pertinent to the motion.” Fed. R. Civ. P.
12(d). Our case law is in accord. See, e.g., Lum v. Bank of Am., 361 F.3d 217, 222 n.3
(3d Cir. 2004) (noting that in deciding a motion under Rule 12(b)(6), “courts generally
consider only the allegations in the complaint, exhibits attached to the complaint, matters
of public record, and documents that form the basis of a claim”). The District Court
appears to have recognized this rule, noting: “To the extent the Court considers facts
proffered by Geraghty in his briefs and accompanying Declaration, and revealed at oral
argument to be undisputed, the motion to dismiss is converted into a motion for summary
judgment on those limited factual issues.” App. at 6.
Failure to give the required notice that fairly apprises the parties that the court is
treating a motion as one for summary judgment may compel reversal, unless the error is
harmless. See In re Rockefeller Ctr. Props., Inc. Sec. Litig., 184 F.3d 280, 287-89 (3d
Cir. 1999). Here, we conclude that the error was harmless. First, no one disputes the

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authenticity of the Release. Second, Geraghty was able to anticipate that the summary
judgment procedure would be followed, filing his own declaration in opposition to the
motion to dismiss. Third, Geraghty has made no showing that he had insufficient notice
to adduce any other relevant evidence and, thus, has shown no prejudice from the lack of
formal notice.
In these circumstances, we conclude that the District Court did not err in
converting ISO’s motion to dismiss into a motion for summary judgment. Geraghty was
not prejudiced by the court’s failure to give formal notice of the conversion.
V.
For the reasons set forth, we will affirm the decision of the District Court.

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