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MARSH v. PRUDENTIAL SEC.

1 N.Y.3d 146 (2003)

802 N.E.2d 610

770 N.Y.S.2d 271

TODD B. MARSH, Individually and on Behalf of all Others Similarly Situated, Appellant, v. PRUDENTIAL SECURITIES INCORPORATED, Respondent.

Court of Appeals of the State of New York.

Decided November 24, 2003.

Attorney(s) appearing for the Case

Fredric J. Gross Law Firm, Mount Ephraim, New Jersey (Fredric J. Gross, Susan E. Babb and Jacqueline Bittner of counsel), and Crowley & Crowley, Morristown, New Jersey (Noel C. Crowley and Michael C. Crowley of counsel), for appellant.

Cahill Gordon & Reindel LLP, New York City (Thomas J. Kavaler, Nicholas S. Goldin and Tammy L. Roy of counsel), for respondent.

Eliot Spitzer, Attorney General, New York City (Seth Kupferberg, Caitlin Halligan, Daniel Smirlock and M. Patricia Smith of counsel), for New York State Commissioner of Labor, amicus curiae.

Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York City (Brad S. Karp, Daniel J. Toal and Daniel R. Garodnick of counsel), for Securities Industry Association, amicus curiae.

Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT and READ concur.

OPINION OF THE COURT

GRAFFEO, J.

Defendant Prudential Securities Incorporated offers an optional investment benefit to a special class of its employees— financial advisors—that is designed to defer taxes on a portion of their income. Periodic contributions from the earnings of these employees are used to purchase shares in a public stock index fund. The question in this case, certified to us by the United States Court of Appeals for the Third...

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