Okerman v. VA Software Corp.

16 Mass. L. Rptr. 513
CourtMassachusetts Superior Court
DecidedJuly 9, 2003
DocketNo. 0101825
StatusPublished
Cited by3 cases

This text of 16 Mass. L. Rptr. 513 (Okerman v. VA Software Corp.) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Okerman v. VA Software Corp., 16 Mass. L. Rptr. 513 (Mass. Ct. App. 2003).

Opinion

Cratsley, J.

The plaintiff, William Okerman (“Oker-man”), brought this action against his former employer, VA Software Corporation (“VA Software”),2 claiming breach of contract (Count I), quantum meruit (Count II), breach of good faith and fair dealing (Count III), promissory estoppel (Count IV) and violation of the Wage statute, G.L.c. 149 (Count V), as a result of his termination from VA Software. Before this Court is VA Software’s motions for summary judgment as to Counts I-IV and judgment on the pleadings as to Count V.

BACKGROUND

All of the following information comes from the summary judgment record which consists of undisputed facts agreed by both parties, deposition testimony, and documentary evidence.

Mr. Okerman graduated cum laude from Harvard University. Prior to entering into negotiations with VA Software, Okerman had 23 years of sales experience selling hardware and/or software for at least eight different companies. In each position, Okerman earned commissions and acknowledged that while working for at least seven of the previous companies, the commission plans changed from time to time, including fluctuations in quotas and percentages earned on sales.

Offer Letter

On March 24, 1999, VA Software extended a written offer of employment (“Offer Letter”) for the position of Boston Marketing Manager to William Okerman (“Okerman”), which Okerman accepted. The Offer Letter provided in pertinent part that:

Your compensation will consist of
A base monthly salary of $7,500.00.
Participation in the company’s stock option plan with 20,000 at the standard option price granted on your starting date subject to approval by the board of directors.
Health insurance through Lifeguard and dental insurance through the Guardian.
3 weeks paid vacation each year.
The standard VA Research Commission Plan for 1999 which has commission as follows;
1.5% of revenues to 3,000,000 in revenues
2.0% of revenues to 6,000,000 in revenues
3.0% of revenues above $6,000,000 in revenue
A sign-on bonus of $2,000 subject to refund if you elect to voluntarily terminate employment with the company within 6 months of your start date.
A $5,000 per month draw against commissions recoverable monthly for 6 months.
As with all VA Reseach staff, your employment is “at will” meaning either you or the company may terminate your employment with two weeks written notice . . .

Although the Offer Letter references the VA Research Commission Plan for 1999, the plan had not yet been drafted, finalized or presented to Okerman. Okerman commenced working at VA Research on March 29, 1999. On that date, VA Software granted Okerman 20,000 stock options. Pursuant to the Offer Letter, twenty-five percent of the stock options would vest a year later on March 29, 2000. Thereafter, the stock options vested monthly on the 29th day of each and every full month of Okerman’s employment.

November 1999 Plan

In preparation for VA Software’s initial public offering in December of 1999, Robert Russo, Senior Vice President of World Wide Field Operations, in conjunction with Linda Yamauchi, Director of Sales Operations, developed a Compensation Overview, Policy and Plan (“November 1999 Plan”). The purpose of the November 1999 Plan was to “provide a consistent, comprehensive framework from which to understand and implement the plans.” Essentially, the November 1999 Plan provided the overarching framework for the promulgation of variable compensation plans for VA Software’s salespeople, and governed the terms by which VA Software managed its sales employees.

The November 1999 Plan became effective on November 4, 1999, and states, in relevant part:

VA [Software] management reserves the right to expand, reduce or otherwise change the territory and quota assignment as deemed appropriate to align with changes in business conditions. Business conditions include, but are not limited to, VA [Software’s] business goals, product order and revenue plans, organization structure and customer business conditions. Changes are at the sole dis[515]*515cretion of management judgment, may be made at any time and may have a retroactive effective date.

The plan also provided that “for all matters of administration, including modification, the Senior Vice President of World Wide Field Operations shall have the sole and final authority.” Accordingly, Robert Russo had the final authority to interpret the document and compensation plans. Okerman disputes that the terms of the November 1999 Plan affect the terms of his employment and compensation package.

Yamauchi states in her affidavit that she had several conference calls with the members of the VA Software sales force in which she explained the purpose of the November 1999 Plan. She says she informed the sales force of the new compensation plan and addressed the fact that it would be effective beginning the second quarter of fiscal year 2000 (November 1999). Yamauchi also says she distributed the November 1999 Plan to all VA Software salespeople. Okerman disputes that he received a copy of the November 1999 Plan and that Yamauchi informed him of his participation.

February 8, 2000 Plan

On or about February 8,2000, VA Software notified all of its sales employees, including Okerman, that it was implementing a new variable compensation plan (“February 8, 2000 Plan”). VA Software states that the February 8, 2000 Plan was developed in order to meet the new corporate objectives of VA Software in connection with its initial public offering in December of 1999.3 Okerman, however, alleges that the new plan was implemented in bad faith in order to deprive him of his commissions already earned.

VA Software retroactively applied the February 8, 2000 plan to November 1, 1999, so that it corresponded with VA Software’s new fiscal year, which it converted from a calendar year to one that commenced on July 29 (making November 1 the start of Quarter 2).4 Okerman, however, alleges that the February 8, 2000 Plan and its retroactive application was developed in bad faith to deprive him of commissions for services rendered. Further, Okerman maintains that the terms of the November 1999 Compensation Plan do not affect his employment terms and compensation.

On February 11, 2000, Okerman signed the February 8, 2000 Plan. However, Okerman contends that he signed the Plan solely to acknowledge its receipt. Further, Okerman avers that he continued to object to the commission structure to his supervisor, David Balch (“Balch”). Okerman admits that he continued his employment with VA Software, but alleges he did so because Balch represented to him that “the money was in the stock” and that Okerman had to remain employed in order to realize the value of his stock options. After objecting to the change in commission, Okerman continued to work for VA Software.

September 1, 2000 Plan

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16 Mass. L. Rptr. 513, Counsel Stack Legal Research, https://law.counselstack.com/opinion/okerman-v-va-software-corp-masssuperct-2003.