FTI, LLC v. Duffy ( 2024 )

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
22-P-912 Appeals Court
FTI, LLC, & another1 vs. ROBERT J. DUFFY & others.2
No. 22-P-912.
Suffolk. November 1, 2023. - July 31, 2024.
Present: Green, C.J., Blake, & Henry, JJ.
Consumer Protection Act, Businessman's claim, Unfair or
deceptive act. Contract, Employment, Agreement not to
compete, Choice of law clause, Performance and breach.
Employment, Constructive discharge. Unlawful Interference.
Practice, Civil, Consumer protection case, Directed
verdict, Instructions to jury.
Civil action commenced in the Superior Court Department on
October 17, 2016.
The case was tried before Kenneth W. Salinger, J.
Derek L. Shaffer, of the District of Columbia (Aliki Sofis
also present) for the defendants.
John Siegal, of New York (Daniel M. Kavouras, of Ohio, &
Melissa M. Carvalho, of New York, also present) for the
plaintiffs.
1 FTI Consulting, Inc.
2 Stephen L. Coulombe, Elliot A. Fuhr, and Berkeley Research
Group, LLC.
2
Stacie A. Kosinski & Alexander W. Read, for Public Justice
Center, Inc., amicus curiae, submitted a brief.
HENRY, J. This matter arose when defendants Robert J.
Duffy, Stephen L. Coulombe, and Elliot A. Fuhr resigned their
positions with plaintiffs FTI, LLC, and FTI Consulting, Inc.
(collectively, FTI), to work for defendant Berkeley Research
Group, LLC (BRG), taking with them numerous FTI employees and
clients.3 FTI brought suit alleging that the individual
defendants were in violation of the noncompetition,
nonsolicitation, and confidentiality provisions of their
employment agreements and that, acting in concert with BRG, all
the defendants wrongfully used FTI's confidential information to
poach FTI's employees and clients. Following a trial, a jury
found the individual defendants liable for breach of contract4
and BRG liable for tortious interference with contractual
relations. In addition, the trial judge found BRG liable for
3 We refer to Duffy, Coulombe, and Fuhr, collectively, as
the individual defendants and to Duffy, Coulombe, Fuhr, and BRG,
collectively, as the defendants.
4 The jury found that all three individual defendants
violated the noncompetition and nonsolicitation provisions of
their employment agreements and that Duffy and Fuhr, but not
Coulombe, violated the confidentiality provisions.
3
aiding and abetting breaches of fiduciary duties and for
violation of G. L. c. 93A.5
On appeal, the defendants argue that (1) BRG cannot be
liable for violation of G. L. c. 93A because the conduct giving
rise to that claim did not occur primarily and substantially in
Massachusetts6 and (2) the trial judge erred in allowing a
directed verdict against them on part of their defense of
constructive discharge and in instructing the jury on the
remainder of that defense. We agree. Accordingly, we reverse
so much of the judgment as holds BRG liable for violation of
G. L. c. 93A. In all other respects, the judgment is vacated,
5 The jury awarded FTI $21,077,000 in compensatory damages
against all the defendants. The trial judge awarded $12 million
in compensatory damages against BRG on FTI's aiding and abetting
and c. 93A claims and $18 million in punitive damages against
BRG on FTI's c. 93A claim. The trial judge then stated that his
$12 million award (1) compensated FTI for injuries already
compensated by the jury award and (2) was "subsumed" within the
jury award. The defendants suggest that no judgment entered
against them on the aiding and abetting claim, as no additional
damages were awarded on that claim. That is incorrect where the
trial judge's finding of liability against BRG on FTI's aiding
and abetting claim is an alternative ground for so much of the
judgment as holds BRG liable for $12 million. Cf. Millennium
Equity Holdings, LLC v. Mahlowitz, 456 Mass. 627, 629 (2010)
(judgment could be affirmed on independent claims that involved
identical damages).
6 BRG raised this defense at trial, arguing to the judge in
closing that the evidence showed that the underlying conduct did
not occur primarily and substantially in Massachusetts.
4
and the matter is remanded for further proceedings consistent
with this opinion.7
1. Violation of G. L. c. 93A. a. Background. We begin
by summarizing the background pertinent to FTI's claim against
BRG for violation of G. L. c. 93A and then, after analysis of
the c. 93A issue, summarize the background pertinent to whether
the individual defendants were constructively discharged. Where
BRG challenges the sufficiency of the evidence (specifically
whether the conduct at issue occurred primarily and
substantially in Massachusetts), and where the c. 93A claim was
tried to the judge, ordinarily we would recite the trial judge's
findings absent clear error. See Kuwaiti Danish Computer Co. v.
Digital Equip. Corp., 438 Mass. 459, 470 (2003). Here, however,
the parties agreed to waive findings of fact and conclusions of
law,8 so we summarize the evidence in the light most favorable to
the prevailing party, FTI. See K & K Dev., Inc. v. Andrews, 103
Mass. App. Ct. 338, 344 (2023) (where parties waived detailed
findings of fact, we apply standard of review applicable to
7 We acknowledge the amicus brief submitted by Public
Justice Center, Inc.
8 To the extent we refer to any factual findings of the
trial judge, they were made in an order on posttrial motions.
BRG does not challenge any factual findings as clearly
erroneous.
5
judgments entered after jury verdicts); Motsis v. Ming's
Supermkt., Inc., 96 Mass. App. Ct. 371, 379-380 (2019).
FTI and BRG are competing consulting firms. FTI is a
Maryland company headquartered in Washington, D.C., and BRG is a
Delaware company headquartered in California, but they both
perform work for clients across the country. Such work
included, for example, financial analyses of other companies and
assistance with mergers and acquisitions. As noted, the
individual defendants all worked for FTI. Duffy and Coulombe
resided in Massachusetts and were based out of FTI's Boston
office. Fuhr resided in New York and was based out of FTI's New
York City office, but he supervised employees in Massachusetts.
Despite where they were based, the individual defendants
performed work for clients across the country and traveled so
frequently that they "liv[ed] out of suitcases."
In or around December 2015, a BRG recruiter reached out to
Duffy. Duffy informed Coulombe and Fuhr of his conversations
with the recruiter, and the three met with BRG in Washington,
D.C., in January 2016. During negotiations, the individual
defendants had additional in-person meetings with BRG in New
York City. During Duffy's negotiations with BRG, Duffy told BRG
that acquiring him was like "buy[ing] a business" and that most
of his clients would follow him. On or around April 7, 2016,
the individual defendants signed employment agreements with BRG.
6
Duffy's agreement, which he signed in New York City, included a
provision for a "practice growth bonus" that he would earn by
bringing employees to BRG. Duffy's, Coulombe's, and Fuhr's
agreements with BRG provided that they would not use any
confidential information or trade secrets of any other party
other than BRG or breach a prior employment restriction. The
next day, on April 8, 2016, the individual defendants
simultaneously resigned from FTI in a joint telephone call.
In hiring Duffy, BRG sought to acquire other employees and
clients of FTI. The trial judge found that "Duffy actively
participated in these efforts, and used FTI's confidential
information to do so, while he was working for FTI out of its
Boston office." The evidence supports a finding that Coulombe
created, and Duffy maintained, a spreadsheet that memorialized
the defendants' efforts. The spreadsheet was saved under the
file name "Super Bowl"9 and listed confidential information about
employees' past, current, and projected compensation; the
employees' revenue generation; offers BRG made to the employees;
and descriptions of whether the employees were "definite,"
"probable," or "likely" recruits. The judge found that, "[w]ith
the help of the [individual defendants], [BRG] succeeded in
9 As FTI's counsel argued in closing, the spreadsheet was
saved under the file name "Super Bowl" because it was "the whole
ball game on the issue of solicitation."
7
convincing [thirty-six] billing professionals -- including the
three individual defendants -- to leave FTI and go to [BRG]."10
One-half of the billing professionals who followed the
individual defendants to BRG came from FTI's Boston office.
Many clients, and their revenues, also left FTI. The trial
judge found that, "[s]ince Duffy was the biggest rainmaker in
[the] group, well over [one-]half of the client revenues that
followed Duffy and his colleagues to [BRG] came from clients
serviced by professionals who had been part of FTI's Boston
office."
b. Discussion. The defendants' appeal requires us to
determine whether "the actions and transactions constituting the
alleged unfair method of competition or the unfair or deceptive
act or practice occurred primarily and substantially within the
commonwealth." G. L. c. 93A, § 11. If the actions and
transactions did not occur primarily and substantially within
Massachusetts, BRG cannot be liable for violation of G. L.
c. 93A. On this issue, because "the burden of proof shall be
upon the person claiming that such transactions and actions did
not occur primarily and substantially within the commonwealth,"
10The recruiter who led BRG's efforts was located
"[p]redominately" in Washington, D.C., although he also held
meetings in New York City and Chicago. There was evidence that
another recruiter made at least one visit to Boston.
8
the burden of proof was on BRG. Id. Accord Resolute Mgt. Inc.
v. Transatlantic Reinsurance Co., 87 Mass. App. Ct. 296, 300
(2015). The analysis required under § 11 does not turn on any
specific factors and instead involves determining "whether the
center of gravity of the circumstances that g[a]ve rise to the
claim" occurred here. Kuwaiti Danish Computer Co., 438 Mass. at
473. Whether BRG met its burden is "a question of law subject
to plenary review." Id. at 470. We conclude that BRG met its
burden.
The trial judge focused on Duffy's connections to FTI's
Boston office, mainly that (1) Duffy was based out of the Boston
office when he was using FTI's confidential data to help BRG11
and (2) because of Duffy's connections to the Boston office, a
significant concentration of the billing professionals and
clients who followed the individual defendants to BRG were by
happenstance also associated with the Boston office.12 While the
As noted, while Duffy was based out of FTI's Boston
11
office, he performed his job on the road and spent little time
in Massachusetts. Additionally, BRG recruited Duffy in part
because he had business connections in southern California,
where BRG hoped to expand its business.
Of the thirty-three billing professionals who left FTI,
12
sixteen came from the Boston office but seventeen came from
outside Massachusetts, including a significant concentration
from New York City. Approximately one hundred professionals
remained in the Boston office. Further, those sixteen
professionals who were based in Massachusetts, like Duffy,
performed their work all over the country. To the extent FTI's
9
trial judge's analysis accurately captures Duffy's connections
to the Boston office, the question is where "the actions and
transactions constituting the alleged unfair method of
competition or the unfair or deceptive act or practice
occurred." G. L. c. 93A, § 11. The proper focus in this claim
against BRG, therefore, is on where the wrongful conduct
occurred. See Kuwaiti Danish Computer Co., 438 Mass. at 474(removing from consideration conduct that was not wrongful).
As FTI concedes, "[r]ecruiting is not in itself unfair or
deceptive." Rather, BRG's wrongful conduct involved
(1) encouraging the individual defendants to collect FTI's
confidential information and give it to BRG, including through
the "Super Bowl" spreadsheet, and (2) using that confidential
information in recruiting FTI's employees and clients.13 BRG,
claimed damages included retention bonuses it paid to employees,
the retention payments made by FTI occurred primarily outside
Massachusetts.
13On FTI's claim for breach of contract, the jury found
that Duffy and Fuhr, but not Coulombe, violated the
confidentiality provisions of their employment agreements. See
note 4, supra. Where the parties waived findings of fact and
conclusions of law on the G. L. c. 93A claim, we do not know
whether the trial judge agreed with the jury that Coulombe did
not violate his confidentiality provision or whether the trial
judge found differently, that Coulombe violated his
confidentiality provision. See Klairmont v. Gainsboro
Restaurant, Inc., 465 Mass. 165, 186 (2013) (judge deciding
c. 93A claim may make findings contrary to what jury found when
deciding parallel common law claims).
10
and those acting at the behest of BRG, executed most of this
scheme during meetings that took place outside Massachusetts.
The individual defendants first met with BRG in Washington, D.C.
Additional in-person meetings occurred in New York City.
Duffy's contract with BRG, which the jury could have found
included a bonus that incentivized him to bring over FTI's
employees, was signed in New York City. The recruiter who led
BRG's efforts, including the recruitment of other FTI employees,
was located predominately in Washington, D.C. While Duffy aided
BRG's efforts by collecting FTI's confidential information and
giving it to BRG, he "liv[ed] out of suitcases" and could have
collected FTI's confidential information anywhere in his
travels.
Moreover, the resulting harm was sustained nationwide by an
out-of-State business. FTI employees were negotiating with FTI
and BRG. FTI's own witnesses testified that employees left FTI
in "waves," starting in Boston and New York City but then
extending across the country to Virginia, Charlotte, Atlanta,
Dallas, Houston, the Midwest and the west coast. The clients
who left also came from across the country. See Bushkin
Assocs., Inc. v. Raytheon Co., 393 Mass. 622, 638-639 (1985)
(where statements were made in Massachusetts but received and
acted on in New York and any loss was incurred in New York,
"significant contacts . . . [were] approximately in balance,"
11
they showed "no primary involvement with Massachusetts").14
Indeed, FTI lost only one Massachusetts client to BRG's
recruitment efforts in 2016.
In sum, "the center of gravity of the circumstances that
g[a]ve rise to the claim" was not here. Kuwaiti Danish Computer
Co., 438 Mass. at 473. Rather, this is a case where most of the
wrongful conduct was "received and acted on" outside
Massachusetts by an out-of-State business, Bushkin Assocs.,
Inc., 393 Mass. at 638, and where the injury was felt by another
out-of-State business from employee and client defections across
the country. Contrast Auto Shine Car Wash Sys., Inc. v. Nice 'N
Clean Car Wash, Inc., 58 Mass. App. Ct. 685, 689 (2003) (G. L.
c. 93A, § 11, claim occurred primarily and substantially in
Commonwealth where deception and resulting harm both occurred in
Massachusetts). In these circumstances, the fact that Duffy
happened to be based out of the Boston office and that,
consequently, a significant concentration of the billing
professionals and clients who left were associated with FTI's
Boston office, does not "suffice to bring this dispute within
14To the extent BRG's G. L. c. 93A liability was based on
colluding with Fuhr, who was based out of the New York City
office, in poaching New York employees and clients, FTI has not
articulated any connection to Massachusetts.
12
the ambit of [G. L. c. 93A, § 11]." Skyhook Wireless, Inc. v.
Google Inc., 86 Mass. App. Ct. 611, 623 (2014).
2. Constructive discharge. a. Background. We now
summarize the background pertinent to whether the individual
defendants were constructively discharged, which the defendants
assert as a defense to the contract-based claims. Where the
defendants' arguments require us to decide whether the trial
judge erred in allowing a directed verdict against the
defendants on part of this defense, see, e.g., Kolodziej v.
Smith, 412 Mass. 215, 217 (1992), and whether, absent an
erroneous jury instruction, the jury might have found that the
individual defendants were constructively discharged, see, e.g.,
Abramian v. President & Fellows of Harvard College, 432 Mass.
107, 118-119 (2000),15 we summarize the trial evidence in the
light most favorable to the defendants.
Prior to their departures, the individual defendants worked
for FTI pursuant to written employment agreements that were
expressly governed by Maryland law and contained noncompetition,
15In Abramian, because the erroneous instruction "stripped
the jury of its fact-finding role," the question was whether
jury could have found in favor of the nonprevailing party. 432
Mass. at 118-119. As we discuss infra, the erroneous
instruction here presents a similar issue.
13
nonsolicitation, and confidentiality provisions.16 Duffy's
agreement, which was executed in 2006, stated that he would earn
a minimum guaranteed salary of $1.5 million.17 Duffy's agreement
also stated that he was a senior managing director. However,
Duffy was made the co-head of FTI's corporate finance and
restructuring (CFR) group in 2011 and the global head of that
group in 2014; he also served on FTI's executive committee. As
with Duffy's agreement, Coulombe's and Fuhr's agreements
guaranteed them certain minimum salaries and stated that they
were senior managing directors. Both held leadership positions
under Duffy.18 Coulombe testified that his work was
"intertwined" with Duffy's, and Fuhr testified that he relied on
Duffy "for developing new business."
16The noncompetition and nonsolicitation provisions were
limited to the "Restricted Period." The "Restricted Period"
began "on the date of the execution of [the employment
agreement] and end[ed] on the expiration of the period ending
twelve (12) months from the termination date of Employee's
employment." "Notwithstanding the foregoing, . . . the duration
of the Restricted Period [was to] be extended by the amount of
any and all periods that Employee violate[d] the [noncompetition
and nonsolicitation provisions]."
17Duffy's salary was subsequently increased to $1.6
million, but the minimum guaranteed salary stated in Duffy's
employment agreement remained $1.5 million.
18Coulombe was the leader of the retail practice in the CFR
group. Fuhr was the head of the office of the chief financial
officer.
14
In 2014, FTI appointed a new chief executive officer,
Steven Gunby, who "set about making changes." Gunby proposed to
reduce Duffy's minimum guaranteed salary by fifty percent, from
$1.5 million to $750,000, but maintained that Duffy would make
up the difference through increases to his bonuses. Duffy took
a different view of Gunby's proposal; he did not want his
minimum guaranteed salary reduced, let alone by fifty percent,
and he thought the bonus plan was "too much under [Gunby's]
control and discretion." In or around January 2016, which
roughly coincided with when Duffy began negotiating with BRG, he
informed Gunby that he would not be signing the proposed
employment agreement. Gunby told Duffy not to attend the next
executive committee meeting, made Duffy "acting" head of the CFR
group, and told Duffy that FTI leadership would be informed that
Duffy was transitioning out of his leadership roles in the CFR
group and on the executive committee.19 Despite taking steps to
transition Duffy out of his leadership roles, Gunby testified
that he wanted Duffy to stay at FTI and that Duffy was "a huge
money-maker."
Duffy's involuntary transition out of his leadership roles
occurred against the backdrop of other senior leaders being
19Duffy and Gunby testified to slightly different timelines
of these events, but there is no dispute that Gunby was
transitioning Duffy out of his leadership roles.
15
terminated. Coulombe and Fuhr testified that senior leaders
were being "booted" or "pushed" out, and they thought Duffy was
next. These were people that Coulombe and Fuhr respected and
relied on to do their jobs. Coulombe was "quickly concluding
that there was probably no future at FTI for [him]." Fuhr
questioned how he was going to build business given what was
going on within FTI.
Then, in or around February 2016, Coulombe and Fuhr were
also presented with new employment agreements. FTI presented
testimony that the new employment agreements were rolled out on
a voluntary basis to reward high-performing employees. Similar
to Duffy, Coulombe and Fuhr took a different view of the new
employment agreements. Coulombe and Fuhr testified that they
were offered the new employment agreements on a nonnegotiable
basis and that the agreements eliminated their minimum
guaranteed salaries and contained other punitive terms.
Coulombe and Fuhr did not sign the new employment agreements.
Coulombe felt that he had no future at FTI without Duffy, and
Fuhr "felt just beaten." Gunby testified that, as with Duffy,
he wanted Coulombe and Fuhr to stay at FTI.
b. Discussion. The defendants asserted constructive
discharge as a defense to FTI's claims for breach of contract,
tortious interference with contractual relations, and aiding and
16
abetting breaches of fiduciary duties.20 Given the choice of law
provision in the individual defendants' employment agreements,
this issue is governed by Maryland law. We therefore turn to
Maryland law on constructive discharge.
Maryland recognizes two theories of constructive discharge
relevant to this case. First, Maryland recognizes that an
employee is constructively discharged when the "employee
contracts to fill a particular position" and suffers a "material
change in duties or significant reduction in rank[,] . . . if
unjustified" (citation omitted). Weisman v. Connors, 69 Md.
App. 732, 743 (1987), rev'd on other grounds, 312 Md. 42820These claims were tried on the basis that the individual
defendants violated the noncompetition, nonsolicitation, and
confidentiality provisions of their employment agreements and
that BRG tortiously interfered with those provisions and aided
and abetted the individual defendants in violating them. As the
trial judge ruled in a pretrial order, which FTI does not
challenge on appeal, if the individual defendants were
constructively discharged, their contractual obligations ended
at that time. See B-Line Med., LLC v. Interactive Digital
Solutions, Inc., 209 Md. App. 22, 60 (2012) (material breach
relieves other party of performance); Weisman v. Connors, 69 Md.
App. 732, 743 (1987), rev'd on other grounds, 312 Md. 428 (1988)
(constructive discharge is breach of contract). This leaves
open the possibility that some of the conduct giving rise to the
defendants' liability may have occurred before the individual
defendants were constructively discharged, which may be explored
on remand. Separately, regarding FTI's claim that the
individual defendants violated the noncompetition and
nonsolicitation provisions of their employment agreements, the
trial judge instructed the jury, and there is no argument to the
contrary, that the noncompetition and nonsolicitation provisions
could not be enforced if the individual defendants were
constructively discharged.
17
(1988). Second, Maryland recognizes that an employee is
constructively discharged "when an employer deliberately causes
or allows the employee's working conditions to become so
intolerable that the employee is forced into an involuntary
resignation" (quotation and citation omitted). Beye v. Bureau
of Nat'l Affairs, 59 Md. App. 642, 651 (1984).
In determining whether someone's working conditions have
resulted in a constructive discharge, Maryland applies a
standard that has both objective and subjective elements. See
Beye, 59 Md. App. at 651-653. The objective portion of the
standard requires a court to determine whether "a reasonable
person in the employee's shoes would have felt compelled to
resign" (citation omitted). Id. at 652. The subjective portion
of the standard is not as straightforward and has been the
source of some disagreement. As the court noted in Beye,
"some courts have suggested that a constructive discharge
does not occur unless the employer's actions are both
deliberate and taken with the intention of forcing a
resignation. In most of the decisions, however, . . . such
express intent has not been regarded as necessary. It
suffices if the employer's actions were deliberate or, in
cases of harassment by supervisors or fellow employees, if
the employer was aware of the situation and permitted it to
continue." (Citations omitted.)
18
Id. at 651-652. While the Beye court noted that "some courts"
require proof of intent to force a resignation,21 the Beye court
did not adopt that requirement and instead concluded that the
question is "whether the employer has deliberately caused or
allowed the employee's working conditions to become so
intolerable that a reasonable person in the employee's place
would have felt compelled to resign." Id. at 653.22
i. Directed verdict. The defendants argue that the trial
judge erroneously granted a directed verdict on the defendants'
theory that Duffy was demoted.23 The issue with respect to
whether Duffy was demoted arises from the fact that his
employment agreement stated that he was a senior managing
director, not the head of the CFR group. FTI contends that it
contracted with Duffy to fill the position of senior managing
21In Massachusetts, the standard is whether the "working
conditions would have been so difficult or unpleasant that a
reasonable person in the employee's shoes would have felt
compelled to resign" (quotation and citation omitted). GTE
Prods. Corp. v. Stewart, 421 Mass. 22, 34 (1995).
22The amicus notes that requiring the employee to prove
intent to force a resignation is problematic because in some
situations, such as sexual harassment, the employer may want the
worker to remain employed so that the harassment can continue.
See, e.g., Hukkanen v. International Union of Operating Eng'rs,
Hoisting & Portable Local No. 101, 3 F.3d 281, 284-285 (8th Cir.
1993).
23At trial, the defendants made this argument with respect
to all the individual defendants. On appeal, they pursue the
argument only with respect to Duffy.
19
director, that any title he held beyond that was akin to a
rotational leadership position, and that he was not demoted when
made "acting" head of the CFR group. The defendants contend
that Duffy's employment agreement was modified by the parties'
conduct, that FTI contracted with Duffy to fill the position of
head of the CFR group, and that Duffy suffered an unjustified,
significant reduction in rank when demoted to "acting" head of
that group. See Weisman, 69 Md. App. at 743. On this point,
there was sufficient evidence to raise a jury question such that
FTI's motion for a directed verdict should not have been
allowed.
There was evidence that Duffy led the CFR group from 2011
until 2016, first as co-head of the group and then as head of
the group, and that FTI began to transition Duffy out of that
position not as part of a regular, rotational system but because
he would not agree to a drastic reduction in his guaranteed
minimum salary. In the light most favorable to the defendants,
Duffy's long tenure leading the CFR group and the circumstances
in which FTI began to transition him out of the position
supported an inference that the position was a contracted-for
position, not a rotational leadership position, and that the
parties, through their conduct, modified Duffy's employment
20
agreement to fill the position. While the inference was not
inescapable, it was permissible.24
ii. Jury instructions. The defendants also argue that the
trial judge erred in instructing the jury, over the defendants'
objection, that the defendants had to prove that "FTI set out to
force [the individual defendants] to quit their jobs."25 As
discussed, the Beye court did not adopt that requirement. In
Maryland, the question is "whether the employer has deliberately
caused or allowed the employee's working conditions to become so
intolerable that a reasonable person in the employee's place
would have felt compelled to resign." Beye, 59 Md. App. at 653.
Accord Williams v. Maryland Dep't of Human Servs., 136 Md. App.
153, 178 (2000). We conclude that the jury instruction was
24We are unpersuaded by FTI's additional argument that the
evidence, as a matter of law, showed that Duffy's demotion was
justified. There was evidence that Duffy had a minimum
guaranteed salary and that FTI made him "acting" head of the CFR
group only because he would not agree to a drastic reduction to
his salary, which he had no obligation to do.
25As noted, FTI's aiding and abetting claim was tried to
the judge. Regardless, the erroneous jury instruction requires
vacatur of so much of the judgment as holds BRG liable for
aiding and abetting, because the erroneous jury instruction
shows that the trial judge also instructed himself incorrectly
as to the defense of constructive discharge. See Rabinowitz v.
Schenkman, 103 Mass. App. Ct. 538, 542 (2023), citing
Commonwealth v. Beaulieu, 3 Mass. App. Ct. 786, 787 (1975) (we
presume that judges correctly instruct themselves as to law
absent "contrary indication" in record).
21
erroneous.26 Moreover, the error was prejudicial for the
following reasons.
There was evidence of upheaval within FTI and that senior
leaders were being terminated or "pushed" out. The jury could
have found that FTI sought to undermine Duffy by removing him
from his leadership positions when he did not agree to a drastic
reduction to his minimum guaranteed salary. The jury also could
have found that (1) the upheaval had serious ramifications for
Coulombe and Fuhr, who relied on the senior leaders who were
being terminated or demoted, and (2) at the same time, FTI was
strong-arming Coulombe and Fuhr into signing new employment
agreements that contained punitive terms. The jury could have
concluded that, in these circumstances, "a reasonable person in
the employee's place would have felt compelled to resign."
Beye, 59 Md. App. at 653.27
26FTI's reliance on Moniodis v. Cook, 64 Md. App. 1 (1985),
is unavailing. In that case, and others cited by FTI, there was
"ample evidence" of an intent to force a resignation, id. at 11,
so the court did not need to reach what would have happened had
there been no such intent to force a resignation.
27Accordingly, we are unpersuaded by FTI's argument that
the evidence did not support a conclusion that the individual
defendants' working conditions were "so intolerable." In large
part, FTI relies on the fact that there was no egregious
personal harassment, but that is not required under Maryland
law. See Weisman, 69 Md. App. at 743 (Maryland does not require
"truly outrageous conduct on the part of the employer
approximating that needed to constitute an abusive discharge"
[quotation and citation omitted]). FTI also relies on the fact
22
The erroneous jury instruction, however, invited the jury
to conclude that the individual defendants were not
constructively discharged so long as FTI did not specifically
intend to force their involuntary resignations. The jury may
well have based their verdict on the erroneous instruction, as
there was evidence from which the jury could have concluded that
FTI wanted the individual defendants to remain at FTI, albeit in
weakened positions, including working under revised employment
agreements that were potentially significantly less lucrative.
FTI itself presented testimony that it did not want the
individual defendants to leave, as they all generated a
significant amount of revenue for FTI. Where the jury may have
based their verdict on the erroneous instruction, the error was
prejudicial.28
that the individual defendants were all well paid employees.
That may be true, but it was for the jury to decide whether,
given the proposed reductions in their salaries (Duffy's
guaranteed minimum salary was cut in half and the other
individual defendants' minimum salaries were eliminated), the
defendants' working conditions were not "so intolerable."
28Given our conclusion, we need not reach an alternative
argument raised by the defendants that (1) Maryland law
prohibits restrictive covenants that are indefinite in duration
and (2) the "Restricted Period" during which the noncompetition
and nonsolicitation provisions were in effect, see note 16,
supra, was for an indefinite period of time. The defendants
rely on the language that stating that the "Restricted Period"
could be extended by "the amount of any and all periods that
Employee violate[d] the [noncompetition and nonsolicitation
provisions." While we need not reach the issue, we provide the
23
3. Conclusion. The judgment on FTI's claim against BRG
for violation of G. L. c. 93A is reversed, and judgment shall
enter for BRG on that claim. In all other respects, the
judgment is vacated, and the matter is remanded for further
proceedings29 consistent with this opinion.30
So ordered.
following guidance should the issue arise again on remand. The
defendants rely solely on Nationwide Mut. Ins. Co. v. Hart, 73
Md. App. 406, 413 (1988), which concluded that a restrictive
covenant was unreasonable as to duration because it had an
indefinite start date. That is not the circumstance here. The
"Restricted Period" had a definite start date beginning on the
date each employment agreement was executed, continued for
twelve months after each individual defendant was constructively
discharged, and was extended for any period of noncompliance,
which was within each individual defendant's control.
29As noted, the jury found that Coulombe did not violate
the confidentiality provision of his employment agreement. See
note 4, supra. That issue, having been fairly settled by the
jury's answer to a special verdict question, should not be
retried. See, e.g., Burke v. Hodge, 211 Mass. 156, 164 (1912).
30 FTI's request for appellate attorney's fees is denied.