Deeds v. Waddell & Reed Invest. Mgmt. Co.

No. 104,949

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

CHARLES P. DEEDS,
Appellant,

v.

WADDELL & REED INVESTMENT MANAGEMENT COMPANY,
Appellee,


SYLLABUS BY THE COURT

1.
Kansas law recognizes the tort of retaliatory discharge when an employee is
terminated for filing a wage claim under the Kansas Wage Payment Act, K.S.A. 44-313
et seq. This tort may arise in advance of actual filing of the wage claim if the employee
complains to the employer and that complaint is sufficiently clear and detailed for a
reasonable employer to understand it, in light of both content and context, as an assertion
of rights protected by the Kansas Wage Payment Act and a call for the protection of those
rights under the Act.

2.
Under the facts of this case, in which the employee was unaware of the Kansas
Wage Payment Act and made equivocal statements to the employer about what action he
was requesting regarding his compensation, the employee did not sufficiently invoke the
protection of the Kansas Wage Payment Act to be able to bring a retaliatory-discharge
claim.

2
3.
Kansas law does not recognize a tort of retaliatory discharge when an employee is
terminated in an attempt to avoid paying the employee a commission, even if the
commission has already been earned. Nor does Kansas recognize a tort of retaliatory
discharge when an employee is terminated to prevent the employee from earning future
commissions.

Appeal from Johnson District Court; THOMAS M. SUTHERLAND, judge. Opinion filed May 4,
2012. Affirmed.

Donald N. Peterson, II, and Sean M. McGivern, of Withers, Gough, Pike, Pfaff & Peterson, LLC,
of Wichita, for appellant.

Jeffrey D. Hanslick, James D. Griffin, and Curtis R. Summers, of Husch Blackwell Sanders LLP, of
Kansas City, Missouri, and Jennifer Lepentis, senior counsel, of Waddell & Reed Financial Services, Inc.,
of Overland Park, for appellee.

Before BRUNS, P.J., LEBEN and STANDRIDGE, JJ.

LEBEN, J.: In 2007, Waddell & Reed fired Charles Deeds from his position as a
sales marketing executive. A year later, Deeds filed an administrative claim (still
pending) under the Kansas Wage Payment Act seeking more than $1 million in
commissions he said he had earned that hadn't been paid to him. In 2009, Deeds sued
Waddell & Reed, alleging that it had fired him in retaliation for exercising his rights
under the Kansas Wage Payment Act.

But a person can't be fired in retaliation for exercising rights under the Kansas
Wage Payment Act unless the employee has given some indication that he or she is
acting under its provisions. Here, Deeds complained about changes in the compensation
system but was personally unaware of the Kansas Wage Payment Act and never
3
suggested he was making a claim under its provisions. The equivocal statements Deeds
made to his employer are not enough to support a lawsuit alleging that he was fired for
exercising rights under the Kansas Wage Payment Act.

Deeds attempts to create other exceptions to the Kansas employment-at-will rule,
under which the employer usually can fire an employee at any time for any reason. These
attempts fail because Deeds has not cited a clear Kansas public policy to support his
position, a requirement for an exception to be made. Deeds also attempts to use the
equitable claim of unjust enrichment to proceed in court on his claim for commissions—
arguing that Waddell & Reed received an unfair benefit by retaining the commissions, so
Deeds should be compensated—but that is contrary to the longstanding rule that an
equitable claim is not available when a legal remedy exists. Since Deeds is seeking the
same recovery in his administrative claim under the Kansas Wage Payment Act, his
equitable claim fails. The district court granted summary judgment to Waddell & Reed,
and we find that its judgment was proper.

FACTUAL BACKGROUND

Waddell & Reed hired Charles Deeds as vice president of marketing and client
service for the Southeast region in 1998. There was no employment contract that
specified the duration of Deeds' employment, and the parties agree that Deeds was an at-
will employee of Waddell & Reed, so the company was free to end Deeds' employment
at any time. Deeds started with a base salary of $77,000, plus commissions based on sales
production and ongoing client servicing. The commissions for selling new accounts were
20 percent of revenues in the first year, 10 percent in the second year, 5 percent in the
third and fourth years, and 2.5 percent for each year following, which was termed a
"trailer" commission. The commission was capped at $50,000 per account per year. The
parties disagree about whether Deeds still must be employed by Waddell & Reed to earn
the trailer commission.
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Waddell & Reed changed the commission schedule effective July 1, 2005. The
new schedule phased out the trailer commission so that it no longer would be paid after
July 1, 2007. Deeds testified that he believed he had earned these commissions at the
time of sale and would be paid these commissions every year as long as the account
remained with Waddell & Reed.

Deeds complained about the 2005 commission change to Waddell & Reed's
management at least five times. Deeds first complained to Nikki Newton, his supervisor,
about what he perceived to be the retroactive nature of the change; Deeds felt that
Waddell & Reed was changing an existing compensation agreement. Later in 2005,
Deeds complained to Newton's supervisor, John Sundeen, and said he didn't believe "it
was right" to change the commission structure. Deeds complained to Sundeen and
Newton again in 2006. Later, Deeds admitted he didn't know what the law was under the
Kansas Wage Payment Act at the time of these complaints. When Newton asked Deeds
what he wanted, Deeds answered, "A fair compensation plan or return of those trailer
commissions." In early 2007, Deeds said Newton told him he would take Deeds' request
to management and get back to him.

Waddell & Reed fired Deeds on April 9, 2007. Newton told Deeds that Waddell &
Reed decided not to change the commission schedule, so the company terminated Deeds'
employment because management knew Deeds wasn't going to be happy about the
decision. Newton assumed Deeds' largest account and received its commissions. About a
year after Deeds was fired, he filed a wage claim under the Kansas Wage Payment Act
with the Kansas Department of Labor for more than $1 million. In 2009, a hearing officer
denied Deeds' wage claim. An administrative review of the hearing officer's order was
pending as of July 2010.

5
In 2009, Deeds brought claims against Waddell & Reed under four theories related
to his termination and commissions: retaliatory discharge, wrongful discharge,
prevention, and unjust enrichment. The district court granted Waddell & Reed's motion
for summary judgment August 2, 2010. Deeds has appealed to this court.

ANALYSIS

I. Deeds Has Not Established Factual Support for a Retaliatory-Discharge Claim under
the Kansas Wage Payment Act.

Deeds' first legal claim is a common-law claim regarding his discharge from
Waddell & Reed that he alleges came in retaliation for exercising his rights under the
Kansas Wage Payment Act, K.S.A. 44-313 et seq. The district court granted summary
judgment to Waddell & Reed because no Kansas appellate court had recognized a
retaliatory-discharge claim related to the exercise of Kansas Wage Payment Act rights.
But the Kansas Supreme Court recognized that cause of action in Campbell v. Husky
Hogs, 292 Kan. 225, Syl. ¶ 1, 255 P.3d 1 (2011). So the question before us is whether
Deeds has provided sufficient factual support to make such a claim.

We first briefly review the rules we must apply to determine whether Deeds has
presented a sufficient claim. Questions of law, "including those at the heart of summary
judgment decisions," are subject to unlimited review on appeal. Thomas v. Board of
Shawnee County Comm'rs, 293 Kan. 208, 221, 262 P.3d 336 (2011). Summary judgment
is appropriate when there is no genuine issue as to any material fact and when a party
cannot prevail as a matter of law even when the court, as required, looks at all facts and
inferences that may be reasonably drawn from the evidence in the party's favor. When
opposing a motion for summary judgment, an adverse party must come forward with
evidence to establish a dispute as to a material fact. In order to prevent summary
judgment, the facts subject to the dispute must be material to the conclusive issues in the
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case. Osterhaus v. Toth, 291 Kan. 759, 768, 249 P.3d 888 (2011). On appeal, the same
rules apply. So this court looks at the evidence in a light favorable to Deeds and requires
Deeds to come forward with evidence to establish a dispute as to a material fact.
Summary judgment must be denied if reasonable minds could differ as to the conclusions
drawn from the evidence, 291 Kan. at 768, but a party can't avoid summary judgment on
the mere hope that something may develop later at trial. U.S.D. No. 232 v. CWD
Investments, 288 Kan. 536, 559, 205 P.3d 1245 (2009).

Let's start by considering what facts have been established, keeping in mind that
we must take the facts in the light most favorable to Deeds. Deeds complained at least
five times about the change in the commission schedule that phased out the annual 2.5
percent trailer commission for accounts sold before July 1, 2005. Deeds said that Waddell
& Reed had broken its contractual agreement with him, though he never suggested a
violation of the Kansas Wage Payment Act since he had no knowledge of its provisions
until much later. At one point, when Deeds' supervisor asked what Deeds wanted, Deeds
replied, "A fair compensation plan or return of those trailer commissions."

Eventually, Waddell & Reed chose to fire Deeds. According to Deeds, his
supervisor told him, " Chuck, I've taken your compensation complaint to management.
They have determined not to respond. They know because they're—they—they have
determined because you will not be happy [with] their response, that we will—we are
going to terminate your employment today." In sum, Deeds was fired because he
complained about changes to the terms of his compensation, and his complaints included
a claim that Waddell & Reed had breached its contractual obligation to him. But he also
told his employer—before he was fired—that he would be satisfied either with a "fair
compensation plan" or a return to what he understood was the former contractual
agreement.

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So has Deeds stated a claim for retaliatory discharge? The essence of a retaliatory-
discharge claim is that the employee has been fired contrary to a recognized state public
policy. Otherwise, the employment-at-will doctrine controls, and under it an employee
may be fired at any time for any reason unless a contract says otherwise. Campell, 292
Kan. at 227; Goodman v. Wesley Med. Center, 276 Kan. 586, Syl. ¶ 1, 78 P.3d 817
(2003). The Campbell case must be the starting point for our analysis—it is the case
recognizing a retaliatory-discharge claim where necessary to protect rights provided by
the Kansas Wage Payment Act.

We start with the court's statement of the rule it adopted in Campbell: "Kansas
law recognizes the tort of retaliatory discharge when an employee is terminated for filing
a wage claim under the Kansas Wage Payment Act." (Emphasis added.) 292 Kan. 225,
Syl. ¶ 1. As stated in the court's syllabus paragraph, this claim protects an employee who
is fired for filing a wage claim, something that Deeds hadn't even contemplated when he
was fired. If that's the extent to which this cause of action exists in Kansas, Deeds' case is
an easy one to resolve: He can't bring this claim because he hadn't filed a claim.

There is some support for resolving Deeds' claim that way. The Kansas Supreme
Court is required to prepare a syllabus that tells "the points decided in the case," K.S.A.
20-111, and the court faithfully attempts to state its holdings in the syllabus paragraphs.
See State v. Patton, 287 Kan. 200, 218, 195 P.3d 753 (2008). The Kansas Court of
Appeals is, of course, bound by the holdings of our Supreme Court. State v. Barajas, 43
Kan. App. 2d 639, 649, 230 P.3d 784 (2010). So one could argue that we may not
recognize a retaliatory-discharge claim for the exercise of rights under the Kansas Wage
Payment Act beyond what has been recognized in the Campbell opinion's syllabus
paragraph, which recognized the right only when the employee had filed a claim first.

But such a reading of Campbell is too narrow. After all, the court in Campbell had
no cause to address whether such a claim might be recognized before a written wage
8
claim was filed because Campbell alleged that he was fired 1 day after the Kansas
Department of Labor had acknowledged receiving his claim. 292 Kan. at 226. We
therefore must determine whether Kansas law recognizes a retaliatory-discharge claim at
some point before a claim is filed under the Kansas Wage Payment Act.

Two principles set out by the Kansas Supreme Court guide us here. First, the
public policy justifying an exception to the normal employment-at-will rule must be so
clear that its existence is not subject to any substantial doubt. Campbell, 292 Kan. at 230.
Second, in each situation where the public-policy basis for the exception has been a
statutory right, the court has noted that it is the exercise of that right that triggers the
protection of a retaliatory-discharge claim. Consider Hysten v. Burlington Northern Santa
Fe Ry. Co., 277 Kan. 551, 85 P.3d 1183 (2004), in which the court recognized a
retaliatory-discharge claim when an employee exercised rights under Federal Employers
Liability Act (FELA). The court emphasized that the public policy at issue was based on
the worker's use of statutory rights: "Regardless of whether FELA or the Kansas
Workers Compensation Act supplies the framework to support an injured worker's
pursuit of recovery, the public policy underlying the framework would be undermined if
the worker could be fired for the exercise of his or her statutory right." (Emphasis
added.) 277 Kan. at 556-57; accord Campbell, 292 Kan. at 234 (finding a retaliatory-
discharge claim "necessary [to carry out public policy] when an employer fires a worker
who seeks to exercise [Kansas Wage Payment Act] rights by filing a wage claim"
[emphasis added]).

We find additional help in determining when a retaliatory-discharge claim might
exist before a wage-payment claim has been filed in a recent United States Supreme
Court decision, Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. ___, 131 S.
Ct. 1325, 179 L. Ed. 2d 379 (2011). In Kasten, an employee brought a retaliatory-
discharge claim based on the assertion that the employer had fired him for making a
claim under the federal Fair Labor Standards Act. Unlike the Kansas Wage Payment Act,
9
the Fair Labor Standards Act contains a statutory prohibition on employer retaliation
against an employee who has "filed any complaint" under the Act. See 29 U.S.C. §
215(a)(3) (2006). But the Kasten Court concluded that the statutory policy could be
carried out only if oral complaints were considered sufficient to trigger the anti-retaliation
provision. 131 S. Ct. at 1333-35. The Court concluded that either an oral or written
complaint could be sufficient, but "[t]o fall within the scope of the antiretaliation
provision, a complaint must be sufficiently clear and detailed for a reasonable employer
to understand it, in light of both content and context, as an assertion of rights protected by
the statute and a call for their protection." 131 S. Ct. at 1335.

That standard seems a fair one in our situation too. An oral complaint should be
sufficient, but only if the complaint is clear enough that the employer would understand
that the employee is asserting rights protected by the statute (here, the Kansas Wage
Payment Act). For it is the exercise of those rights that leads to recognition of the
retaliatory-discharge claim, and application of the public-policy exception should be so
clear that its existence is not subject to any substantial doubt.

Under this standard, Deeds has not set out a valid retaliatory-discharge claim. He
was unaware of the Kansas Wage Payment Act and made no attempt to claim its
protection, let alone notify Waddell & Reed of such a claim before he was fired.
Moreover, the statements he made to his employer were equivocal with regard to a
potential claim under the Kansas Wage Payment Act: while he complained about the
change in the terms of compensation, he said that he could be satisfied either with return
of the prior terms or some "fair compensation plan." The latter option does not suggest a
claim under the Kansas Wage Payment Act for specific wages due under his employment
agreement.

Deeds argues that he can have a valid retaliatory-discharge claim—even without
knowing of the Kansas Wage Payment Act or taking any steps toward asserting a claim
10
under that Act. In support of this argument, he cites to three Kansas cases considering
retaliatory-discharge claims in the workers-compensation context: Coleman v. Safeway
Stores, Inc., 242 Kan. 804, 752 P.2d 645 (1988); Chrisman v. Philips Industries, Inc., 242
Kan. 772, 751 P.2d 140 (1988); and Pilcher v. Board of Wyandotte County Comm'rs, 14
Kan. App. 2d 206, 787 P.2d 1204, rev. denied 246 Kan. 768 (1990). We do not find these
cases persuasive in our situation—considering when an employee has a retaliatory-
discharge claim for having asserted rights under the Kansas Wage Payment Act—in part
because the statutory provisions under which workers-compensation claims are made
differ significantly from the provisions of the Kansas Wage Payment Act.

But in both workers-compensation and wage-payment disputes, the applicable
statutes provide protection to the employee at all times: an injured worker is entitled to
certain benefits, and employees are entitled to prompt wage payment. And the notice that
an employee gives his employer is essential in claiming these protections. Employers
must provide medical treatment to injured employees, and employees have a right to that
treatment—provided that the employee provides notice to the employer of the work-
related injury within a short time period after the accident. See K.S.A. 2011 Supp. 44-520
(generally requiring notice within 20 days from the date medical treatment is sought)
(effective May 15, 2011); K.S.A. 44-520 (generally requiring notice within 10 days after
date of injury) (provision in effect before May 15, 2011). With that early notice, an
employee has affirmatively sought the protection of the workers-compensation statute. In
Coleman, the court noted that medical treatment had been provided by the employer to
the employee, indicating that at least some act had been taken by the employee to gain
the statute's protection (or at least to accept benefits provided under the statute's
provisions). 242 Kan. at 806. In Chrisman, the employee notified the employer that he
had suffered an injury and that it had been sustained doing tasks at work. 242 Kan. at
773. Thus, in each of these cases, the employee had provided an initial notice that an
employer would reasonably understand as a claim for the protection of the workers-
compensation statutes. The Pilcher opinion does not tell us whether the employee had
11
notified the employer that she claimed her fall on the stairs outside the building where
she worked was work-related, nor does it tell us whether she had requested or received
any employer-provided medical treatment.

There is language in Pilcher stating that it is "wrongful to terminate an employee
because of his or her absence due to a work-related injury." 14 Kan. App. 2d at 215. As
support for that conclusion, the court cited Coleman, a case in which the employer had
provided medical treatment to the employee and thus had awareness of a work-related
injury and the employee's request for medical treatment. Since the Pilcher opinion does
not tell us whether the employee had provided notice of the injury to the employer or
whether the employee had requested medical treatment from the employer, we find it of
no help in determining the question before us—what sort of notice of a potential claim
must be made before an employee may legitimately allege a retaliatory discharge for
exercising his or her rights under the Kansas Wage Payment Act.

Deeds also cites to a statement from Campbell in which the court said that a
retaliatory-discharge claim exists "when an injured worker is terminated for exercising
rights under the Kansas Workers Compensation Act" and that recognition of a similar
cause of action "is necessary when an employer fires a worker who seeks to exercise
[Kansas Wage Payment Act] rights by filing a wage claim." 292 Kan. at 234. Deeds
claims that he was "exercising rights" under the Kansas Wage Payment Act and thus
should have a claim under the Campbell language.

But Deeds' statements were too equivocal to place a reasonable employer on
notice that Deeds was making some claim under the Kansas Wage Payment Act or that
he intended to do so. Without some clear indication that Deeds was invoking any of the
protections provided under the Kansas Wage Payment Act, there can be no claim against
the employer for retaliation in response to the employee's exercise of his rights under that
12
statute. See Chrisman, 242 Kan. 772, Syl. ¶ 2; Koopman v. Water Dist. No. 1 of Johnson
Co., 972 F.2d 1160, 1164 (10th Cir. 1992).

The district court granted summary judgment to Waddell & Reed because no
appellate court had yet recognized a retaliatory-discharge claim based on an employee's
exercise of rights under the Kansas Wage Payment Act. In this regard, the district court's
decision was proven wrong when that cause of action was recognized in Campbell. Even
so, the district court's ultimate result was correct because Deeds had not provided
evidence that he had made a complaint to his employer that would reasonably be
understood as an assertion of rights under the Kansas Wage Payment Act and a claim for
the protections provided by that Act. When the result is correct, even though the reasons
given by the district court were not, we should still affirm the court's ruling. See In re
Marriage of Bradley, 282 Kan. 1, 8, 137 P.3d 1030 (2006). We do so here.

II. Deeds Has Not Established a Case for Recognizing Either of Two New Causes of
Action.

Deeds has also argued for the establishment of two new causes of action. First, he
argues that we should declare that an employer cannot fire an employee to avoid paying a
commission that has already been earned. Second, he argues that an employer cannot fire
an employee to prevent the employee from earning additional commissions. We once
again review the matter independently to determine whether there is a valid legal claim
corresponding to Deeds' allegations and whether he has provided sufficient factual
support for his claim to withstand a summary-judgment motion. Under these standards,
Deeds has not established a valid claim on either theory.

In both cases, Deeds contends that Kansas public policy supports the existence of
these causes of action. But the Kansas Supreme Court has consistently emphasized, as it
reiterated in Campbell, that the public policy must be "clearly declared" by the state
13
constitution, a state statute, or court decision, and that the policy must be so definite that
its existence isn't subject to substantial doubt. 292 Kan. at 230. If this were not the case,
the employment-at-will rule that lies at the heart of Kansas employment law would
become the exception, not the rule.

Deeds has not cited any Kansas constitutional provision, statute, or court opinion
noting a strong public policy forbidding the firing of an employee for the purpose of
avoiding the payment of commissions already earned. We do not believe such a policy
exists under Kansas law. If the commissions truly have been earned, the employee could
make a claim for them either under the Kansas Wage Payment Act or in a breach-of-
contract action. But by firing the employee, the employer would be able to make sure that
its exposure was limited only to what it was already legally obligated to pay. One of the
benefits of the employment-at-will rule is that an employer can downsize—including the
firing of employees to cut payroll and expenses—when business conditions require it,
which can allow the company to remain viable until expansion is again possible.

The only case Deeds cites in support of this cause of action is Gould v. Maryland
Sound Industries, Inc., 31 Cal. App. 4th 1137, 1148, 37 Cal. Rptr. 2d 718 (1995). In that
case, the California Court of Appeal held that an action could not be dismissed for an
employee's failure to state a claim when the employee claimed that he had been fired so
his employer could avoid paying him his already earned commissions. The court noted
that under its state wage-payment law, the amounts, if already earned, would still be
owed, so the motivation attributed to the employer "seems illogical." 31 Cal. App. 4th at
1148 n.3. Yet it held that the action could not be dismissed altogether because the
employee had alleged that the employer had terminated him for that specific purpose,
which the California court held contrary to the state's public policy. 31 Cal. App. 4th at
1148.

14
We are unable to agree with the Gould court's reasoning, at least under Kansas
law. The employment-at-will rule should be discarded only when some clear Kansas
public policy requires it, and none does in this situation. If the commissions have already
been earned, they are still owed to the employee and may be recovered by him. There is
no need to override the normal employment-at-will rule in this situation.

We also note that Deeds himself testified that he didn't believe Waddell & Reed
terminated him to avoid paying him earned commissions. He answered "no" when asked
whether he was "claiming that the motivation for the termination of [his] employment
was an attempt to try to avoid paying [him] earned commissions."

Deeds' second attempt to create a cause of action comes under what's commonly
referred to as the doctrine of prevention. Under this doctrine, one party to a contract,
Party A, can't escape liability or otherwise derive any benefit by preventing the other
party, Party B, from carrying out a "condition precedent"—an activity that must be
performed to trigger Party A's contractual duty to Party B. Morton Bldgs., Inc. v.
Department of Human Resources, 10 Kan. App. 2d 197, 201, 695 P.2d 450, rev. denied
237 Kan. 887 (1985). Deeds contends that Kansas law should therefore prevent an
employer from firing an employee for the purpose of keeping the employee from earning
additional commissions.

Once again, Deeds ignores the policy behind the employment-at-will rule. That
rule allows an employer to lessen the compensation it will owe by firing workers or by
changing the terms for future compensation unless the employer has entered into an
employment contract that requires otherwise.

Deeds has not provided either factual or legal support for the recognition of these
new causes of action.

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III. Deeds' Unjust-Enrichment Claim Is Preempted by his Wage Claim.

Deeds makes a final claim for unjust enrichment (sometimes called by its Latin
name, quantum meruit). Kansas does generally recognize a claim for unjust enrichment
where "'parties agree for the performance of certain work, and the work is done and
accepted, and it appears that there was a misunderstanding as to the price to be paid for
it.' [Citation omitted.]" Campbell-Leonard Realtors v. El Matador Apartment Co., 220
Kan. 659, 662, 556 P.2d 459 (1976). In such cases, the court may award "reasonable
compensation." 220 Kan. at 662.

But a claim for unjust enrichment is an equitable claim, and generally an equitable
remedy is not available when an adequate remedy exists under another legal claim.
Nelson v. Nelson, 288 Kan. 570, 597, 205 P.3d 715 (2009). Here, Deeds has a statutory
remedy through his Kansas Wage Payment Act claim, and he seeks the same damages
under that claim that he seeks here under unjust enrichment.

As of the time of oral argument before us, Deeds' claim under the Kansas Wage
Payment Act remained pending before the Kansas Secretary of Labor. Because Deeds has
an adequate statutory remedy, his equitable unjust-enrichment claim is preempted and
cannot proceed. Garcia v. Tyson Foods, Inc., 766 F. Supp. 2d 1167, 1188 (D. Kan. 2011).

The district court's judgment, which granted summary judgment to Waddell &
Reed, is affirmed.