John Kolb, Jr. v. ACRA Control, Ltd.
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:12-cv-02782-PWG Copies to all parties and the district court/agency. [999703330]. [14-2352]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-2352
JOHN R. KOLB, JR.,
Plaintiff - Appellant,
v.
ACRA CONTROL, LTD., d/b/a ACRA Control, Inc.; ACRA CONTROL,
INC., other ACRA U.S.A.,
Defendants – Appellees,
and
CURTISS-WRIGHT CONTROLS, INC.,
Defendant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Paul W. Grimm, District Judge. (8:12cv-02782-PWG)
Argued:
September 16, 2015
Decided:
November 20, 2015
Before KING, KEENAN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Ian Andrew Cronogue, MURRAY, CRONOGUE & WERFEL, P.L.C.,
Alexandria, Virginia, for Appellant.
Howard Ross Feldman,
WHITEFORD, TAYLOR & PRESTON L.L.P., Baltimore, Maryland, for
Appellees. ON BRIEF: Richard Murray, MURRAY, CRONOGUE & WERFEL,
P.L.C.,
Alexandria,
Virginia,
for
Appellant.
Aaron
L.
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Casagrande, Christopher C. Jeffries, WHITEFORD, TAYLOR & PRESTON
L.L.P., Baltimore, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
This appeal arises out of an employment arrangement between
John R. Kolb (Kolb) and ACRA Control, Ltd. (ACRA Ireland).
In
1999, ACRA Ireland hired Kolb as president of its new whollyowned
American
subsidiary,
ACRA
Control,
Inc.
(ACRA
USA).
During employment negotiations, Kolb and ACRA Ireland agreed to
a Performance Incentive Compensation Plan (PICP), under which
Kolb would be granted options to purchase shares of ACRA Ireland
if ACRA USA’s sales met certain benchmarks.
Although ACRA USA
met those benchmarks in at least some years, Kolb never received
any options under the PICP.
Kolb filed this action, alleging that ACRA Ireland breached
the PICP by failing to issue him share options and that ACRA USA
was unjustly enriched.
The district court granted ACRA Ireland
and ACRA USA’s (collectively, the “ACRA entities”) motion for
summary judgment, finding that Kolb had waived his rights under
the
PICP.
amend.
The
district
court
also
denied
Kolb’s
motion
to
For the reasons below, we affirm.
I.
On February 28, 1999, ACRA Ireland, an Irish corporation,
formed
ACRA
subsidiary.
ground
USA,
a
Maryland
corporation,
as
a
wholly-owned
Both corporations supply real-time data processing
stations
and
airborne
data
3
acquisition
and
recording
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systems to the aerospace industry.
president of ACRA USA.
and treasurer.
ACRA Ireland hired Kolb as
Kolb also served as ACRA USA’s secretary
Fergal Bonner, ACRA Ireland’s managing director
at the time, negotiated an employment agreement with Kolb.
At
the same time the parties entered into the initial employment
agreement, they also executed the PICP.
Under
the
PICP,
Kolb
would
receive
options
to
purchase
shares of ACRA Ireland if certain conditions were satisfied:
[ACRA Ireland] agrees that when the average turnover
(ATO) of [ACRA Ireland] due to US Sales, as defined,
exceeds one million ($1,000,000) dollars, [Kolb] will
be granted an option to purchase 2,159 ordinary shares
of one (1) Irish pound each in [ACRA Ireland] at the
option price defined in the paragraph below. For each
successive increase of one ($1,000,000) Million in ATO
as defined, [Kolb] will be granted an option to
acquire an additional 2,159 ordinary shares of one (1)
Irish pound each in [ACRA Ireland].
The maximum
number of shares available to be granted to [Kolb]
will be 10,795 ordinary shares of one (1) Irish pound
each.
J.A. 420.
The PICP defined ATO as “the total sales revenue of
[ACRA Ireland] in the US, for the current fiscal year plus the
previous fiscal year, divided by two (2) corresponding to the
previous two fiscal years.”
J.A. 421.
The share options were
to be issued at a price of 10 Irish pounds per share.
The PICP
was to be “in effect and maintained for a minimum of five (5)
years during the period of employment unless mutually agreed in
writing.”
J.A. 420 (emphasis in the original).
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ACRA Ireland did not calculate the ATO at any point during
Kolb’s
employment.
For
the
first
five
years
of
Kolb’s
employment, ACRA Ireland did not calculate the ATO because ACRA
USA’s revenue never reached $1 million.
For the remainder of
Kolb’s employment, 2004 to 2011, ACRA Ireland did not calculate
the ATO because it believed that the PICP only had a five-year
term and had therefore expired in 2004.
years—-had
it
been
While the ATO for these
calculated—-likely
would
have
exceeded
$1
million, ACRA Ireland never granted Kolb any share options under
the PICP during his employment.
In addition to the PICP, Kolb and ACRA Ireland entered into
two
other
share
option
agreements.
In
2003,
ACRA
Ireland
offered Kolb an option to buy 2,268 shares of ACRA Ireland for
€31.96 per share. 1
the
PICP.
agreement.
Kolb
The 2003 option agreement did not reference
purchased
100
shares
under
the
2003
option
In October 2010, Curtiss-Wright Controls (UK) Ltd.
(Curtiss-Wright
UK)
entered
into
negotiations
with
ACRA
Ireland’s shareholders to purchase all of the outstanding ACRA
Ireland shares.
In November 2010, ACRA Ireland offered Kolb an
option to buy 2,168 shares of ACRA Ireland for €76.00 per share.
Again, the 2010 option agreement did not reference the PICP.
1
Between the execution of the PICP and the execution of the
2003 option agreement, Ireland switched its currency from the
Irish pound to the euro.
At the time of conversion, €1.00 was
equivalent to about 0.79 Irish pounds.
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Kolb purchased all 2,168 shares under the 2010 option agreement,
conditioned on the completion of Curtiss-Wright UK’s proposed
purchase of all the outstanding ACRA Ireland shares.
notice
exercising
the
2010
option,
Kolb
In his
“confirm[ed]
and
acknowledge[d]” that apart from the 2,168 shares acquired by
exercising
the
exercising
2010
the
option
2003
and
option,
the
he
entitlements in respect of Shares.”
had
100
shares
“no
acquired
by
rights
or
other
J.A. 574.
On July 28, 2011, Curtiss-Wright UK finalized its purchase
of all the outstanding ACRA Ireland shares with the execution of
the
Share
Purchase
Agreement
(SPA).
The
SPA
was
signed
by
Curtiss-Wright and ACRA Ireland’s shareholders, including Kolb.
The SPA, which is 103 pages, states:
The Sellers 2 have agreed to sell and the Buyer has
agreed to purchase the Shares on the terms and subject
to the conditions of this Agreement.
The Shares represent the entire issued share capital
of the Company.
J.A.
449.
The
SPA
and
related
documents
contain
several
warranties and representations relevant to the current dispute.
The SPA provides that “each Seller shall irrevocably waive
any claims against [ACRA Ireland or any subsidiary,] its agent,
or employees which he/she may have outstanding at Completion.”
2
The SPA defines “Sellers” as the “legal and beneficial
owners of the Shares,” which includes Kolb. J.A. 449, 480.
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J.A. 464.
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Schedule 4 to the SPA, which contains the sellers’
warranties, provides:
The Shares comprise the whole of the allotted and
issued share capital of [ACRA Ireland]. There are no
shares issued or allotted in [ACRA Ireland or any
subsidiary] which are not legally and beneficially
owned
by
the
Sellers,
[ACRA
Ireland]
or
a
[subsidiary].
At Completion there is no agreement,
arrangement or obligation in force which calls for the
present or future allotment, issue or transfer of, or
the grant to any person of the right (whether
conditional or otherwise) to call for the allotment,
issue or transfer of, any share or loan capital of
[ACRA Ireland or any subsidiary] . . . .
J.A. 491.
Schedule 4 also provides that neither ACRA Ireland
nor a subsidiary “has offered nor is proposing to introduce any
. . . share option/purchase or retention scheme for any employee
or other person” and that “[t]here are no claims in existence,
pending, or threatened against [ACRA Ireland or any subsidiary]
. . . by a current or former officer or employee in relation to
his terms and conditions of employment or appointment.”
J.A.
515–16.
Schedule 3 of the SPA requires a “letter in the Agreed Form
from each of the Sellers to [ACRA Ireland and its subsidiaries]
acknowledging that the Seller has no claim against the relevant
company other than for compensation in relation to wages and
salary due for the last month.”
J.A. 489.
The same day the SPA
was executed, Kolb delivered the letter required by Schedule 3
to ACRA Ireland.
The letter stated:
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I have no claim or right of action of any kind
outstanding against [ACRA Ireland or any subsidiary]
or any . . . officers or employees arising from my
ownership of shares . . . or otherwise. To the extent
that any such claim exists or may exist, I irrevocably
waive such claim and release [ACRA Ireland and any
subsidiary], its officers and employees from any
liability in respect thereof.
J.A. 598.
Kolb admits that he forgot about the PICP sometime between
when it was executed in 1999 and the execution of the SPA and
related documents in 2011.
Approximately one year after signing
the SPA, Kolb filed this action for breach of contract against
ACRA Ireland, arguing that ACRA Ireland breached the PICP by
failing
to
issue
requisite ATO. 3
enrichment
claim
share
options
despite
sales
meeting
the
A subsequent amended complaint added an unjust
against
ACRA
USA.
On
May
16,
2014,
the
district court granted the ACRA entities’ motion for summary
judgment, finding that Kolb had waived his rights under the PICP
by executing the SPA and related documents.
for
reconsideration,
which
the
district
Kolb filed a motion
court
denied.
Kolb
timely appealed. 4
3
Kolb's original complaint also asserted breach of contract
claims against ACRA USA and Curtiss-Wright USA.
The district
court disposed of these claims on Curtiss-Wright USA’s motion
for summary judgment and ACRA USA’s motion to dismiss.
Kolb
does not contest either ruling.
4 Kolb also appeals the district court’s denial of Kolb’s
second motion to amend, which sought to add a claim against ACRA
(Continued)
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II.
We review a grant of summary judgment de novo.
Evans v.
Techs. Applications & Serv. Co., 80 F.3d 954, 958 (4th Cir.
1996).
“Summary
genuine
dispute
judgment
as
to
is
any
appropriate
material
fact
entitled to judgment as a matter of law.’”
760
F.3d
352,
370
(4th
Cir.
quotation marks omitted).
jury
could
return
a
2014)
when
and
‘there
no
movant
the
is
is
Bostic v. Schaefer,
(citation
and
internal
“A dispute is genuine if a reasonable
verdict
for
the
nonmoving
party.”
Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir.
2013) (citation and internal quotation marks omitted).
“A fact
is material if it ‘might affect the outcome of the suit under
the governing law.’”
Id. (citation and internal quotation marks
omitted).
“We
are
justifiable
inferences
required
to
arising
view
therefrom
favorable to the nonmoving party . . . .”
so,
we
must
determinations.
not
weigh
of
evidence
in
facts
the
light
Id. at 312.
or
make
and
all
most
In doing
credibility
Mercantile Peninsula Bank v. French, 499 F.3d
345, 352 (4th Cir. 2007).
disputes
the
fact
in
favor
“[C]ourts may not resolve genuine
of
the
party
seeking
summary
Ireland under the Maryland Wage Payment and Collection Law, Md.
Code Ann. Lab. & Empl. § 3-501 et seq.
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judgment.”
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Tolan v. Cotton, ––– U.S. ––––, 134 S. Ct. 1861,
1866 (2014) (per curiam).
III.
As an initial matter, we assume that the PICP was in effect
for the entire period of Kolb’s employment.
See J.A. 420 (“The
[PICP] will be in effect and maintained for a minimum of five
(5) years during the period of employment unless mutually agreed
in writing.” (emphasis in original)); see also id. (providing
that when the ATO was achieved, ACRA Ireland would grant Kolb
share options
“[n]ot later than ninety (90) days after the end
of the fiscal year of [ACRA Ireland] and each subsequent fiscal
year of [ACRA Ireland] ending during the period of employment”
(emphasis added)).
never
granted
question
any
before
us
Moreover, it is undisputed that Kolb was
share
is
options
whether
under
the
the
PICP.
district
court
The
only
properly
determined that Kolb waived any claims arising out of the PICP
by executing the SPA and related documents.
IV.
A.
In considering the waiver issue, we must first determine
whether to apply Maryland’s or Ireland’s waiver law.
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Because jurisdiction is based on diversity, we apply the
choice of law principles of the state in which the case was
filed--here, Maryland.
Marks v. Scottsdale Ins. Co., 791 F.3d
448, 451 (4th Cir. 2015).
the
enforceability
and
“When determining which law controls
construction
of
courts] apply lex loci contractus.”
123, 129 n.8 (Md. 2011).
a
contract,
[Maryland
Lewis v. Waletzky, 31 A.3d
This principle instructs that “[i]n
deciding questions of interpretation and validity of contract
provisions, Maryland courts ordinarily should apply the law of
the jurisdiction where the contract was made.”
Allstate Ins.
Co. v. Hart, 611 A.2d 100, 101 (Md. 1992).
Because the PICP was
entered
case
into
in
Maryland
and
this
involves
the
enforceability of the PICP, we apply Maryland law to determine
whether Kolb has waived his rights under the PICP. 5
B.
It
parties
is
[to
well-established
a
contract]
by
under
their
5
Maryland
conduct
law
may
that
waive
“‘the
the
The parties agree that Irish law governs the construction
of the SPA and related documents. See J.A. 478 (“[The SPA] and
any dispute arising out of or in connection with it or its
subject matter or formation . . . shall be governed by and
construed in accordance with the laws of Ireland.”).
In the
district court, Kolb argued that the SPA and related documents,
by their terms, did not waive rights arising out of the PICP.
However, he has not raised that argument here.
Therefore, as
discussed below, matters of Irish law are only at issue to the
extent Kolb argues that lack of privity precludes waiver.
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requirements
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of
[the]
Pg: 12 of 22
written
contract.’”
Questar
Homes
of
Avalon, LLC v. Pillar Constr., Inc., 882 A.2d 288, 294 (Md.
2005)
(alteration
Wolfe,
369
A.2d
in
original)
570,
576
(quoting
(Md.
Univ.
1977)).
Nat'l
Waiver
Bank
is
v.
“the
intentional relinquishment of a known right, or such conduct as
warrants an inference of the relinquishment of such right, and
may
result
from
circumstances.”
(citations
and
an
express
agreement
or
be
inferred
from
Myers v. Kayhoe, 892 A.2d 520, 530 (Md. 2006)
internal
quotation
marks
omitted).
Because
“[w]aiver rests upon the intention of the party, . . . acts
relied
upon
as
constituting
waiver
demonstrate that waiver is intended.”
must
unequivocally
Taylor v. Mandel, 935
A.2d 671, 686 (Md. 2007) (citations omitted).
C.
Kolb argues that he has not waived his rights under the
PICP for three reasons: (1) he did not have full knowledge of
his rights; (2) he could not unilaterally waive his rights; and
(3) ACRA Ireland cannot enforce the SPA since it was not a party
to the SPA.
We consider each argument in turn.
1.
Kolb first contends that he did not waive his rights under
the PICP because he did not have full knowledge of those rights.
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Maryland
Filed: 11/20/2015
courts
relinquishment
of
(emphasis added).
a
have
Pg: 13 of 22
defined
known
waiver
right.”
as
Taylor,
“the
935
intentional
A.2d
at
686
“The right or advantage waived must be known;
[t]he general rule is that there can be no waiver unless the
person against whom the waiver is claimed had full knowledge of
his rights, and of facts which will enable him to take effectual
action
for
the
enforcement
of
such
rights.”
Id.
at
687
(alteration in original) (citations and internal quotation marks
omitted).
The Maryland Court of Appeals has apparently not considered
whether constructive knowledge is sufficient to satisfy waiver’s
knowledge
requirement.
Where
state
law
is
unclear,
federal
courts must predict the decision of the state’s highest court.
See Wells v. Liddy, 186 F.3d 505, 527-28 (4th Cir. 1999).
In
knowledge
several
states,
required
for
constructive knowledge. 6
courts
waiver
have
can
determined
be
either
that
the
actual
or
These states align with Williston on
Contracts, a treatise frequently cited by the Maryland Court of
6
See, e.g., Brown-Marx Assocs., Ltd. v. Emigrant Sav. Bank,
703 F.2d 1361, 1369 (11th Cir. 1983) (applying Alabama law);
Richardson v. Wells Fargo Bank, N.A., 873 F. Supp. 2d 800, 810
(N.D. Tex. 2012) (applying Texas law); Winans v. Weber, 979 So.
2d 269, 274 (Fla. Dist. Ct. App. 2007); Lyons ex rel. Lawing v.
Holder, 163 P.3d 343, 349 (Kan. Ct. App. 2007); In re
Guardianship of Florence T.O., 744 N.W.2d 915, 919 (Wis. Ct.
App. 2007).
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Appeals. 7
See 13 Richard A. Lord, Williston on Contracts § 39:22
(4th
1990)(hereinafter
ed.
Williston).
Williston
notes
that
“[i]t is also essential to the existence of a waiver of a right
to performance under a contract that the party charged with the
waiver have actual or constructive knowledge of the right or
privilege allegedly waived.”
Id.
Williston continues:
[T]he party who has allegedly waived its rights is
presumed to know those things (including matters
concerning the other party’s performance or failure to
perform) which reasonable diligence on its part would
bring to its attention. Thus, the party charged with
waiver may not plead willful ignorance and escape the
waiver; rather, a waiver made with knowledge of facts
which would put an ordinary person on inquiry is
sufficient.
Id.; see also 28 Am. Jur. 2d Estoppel and Waiver § 188 (“It must
generally
be
shown
by
the
party
claiming
a
waiver
that
the
person against whom the waiver is asserted had, at the time,
knowledge,
party’s
actual
rights
or
or
of
constructive,
all
of
material
the
facts
existence
upon
of
which
the
they
depended.”).
Based
on
the
foregoing
authority,
we
predict
that
the
Maryland Court of Appeals would hold that constructive knowledge
of a right—-that is, “[k]nowledge that one using reasonable care
or diligence should have, and therefore that is attributed by
7
Notably, the Maryland Court of Appeals has quoted
Williston with approval while discussing waiver. See Canaras v.
Lift Truck Servs., Inc., 322 A.2d 866, 879 (Md. 1974).
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law to a given person,” Black’s Law Dictionary (10th ed. 2014)
(defining “constructive knowledge”)-–is sufficient to waive that
right.
Kolb asserts that because ACRA Ireland did not calculate
the ATO or grant him options to purchase shares when the ATO was
achieved, he did not have knowledge of his rights under the
PICP.
Regardless of whether Kolb had actual knowledge of his
rights under the PICP, we find as a matter of law that he had
constructive knowledge of those rights.
First, Kolb was well-
acquainted with the PICP and its terms.
Kolb and ACRA Ireland
signed the PICP only after “extensive negotiations.”
J.A. 1022.
Kolb considered the PICP “a critical, if not decisive, factor”
in
his
choice
to
leave
his
president of ACRA USA.
higher
paying
job
and
become
J.A. 351; see also J.A. 2264 (Kolb
testifying that the ability to gain ownership in ACRA Ireland
was a key component of his compensation package).
Kolb
indicated
that,
as
president
of
ACRA
Moreover,
USA,
he
was
“generally” aware of the company’s sales at all times and that,
in
any
given
year,
he
had
all
the
calculate the ATO available to him.
information
required
J.A. 1121, 1200–01.
to
He
further acknowledged that the ATO was a simple calculation that
he could have calculated if he had wanted to.
J.A. 1199-1201.
Reasonable diligence on Kolb’s part would have alerted him
that ACRA USA’s revenues triggered his rights to share options
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under the PICP.
which
[would]
That is, Kolb had full knowledge of “facts
enable
him
to
enforcement of such rights.”
and
internal
Pg: 16 of 22
quotation
take
effectual
action
for
the
Taylor, 935 A.2d at 687 (citation
marks
omitted).
Accepting
Kolb’s
contention that he had no knowledge of his rights under the PICP
would permit Kolb to “escape the waiver” by “plead[ing] willful
ignorance.”
13
Williston
§
39:22.
Because
Kolb
had
constructive knowledge of his rights under the PICP, he could
waive those rights.
2.
Next,
Kolb
argues
that
he
could
not
have
unilaterally
waived his rights under the PICP because the provision at issue
was for the mutual benefit of both himself and ACRA Ireland.
Under Maryland law, “[e]ither party to a contract may waive
any of the provisions made for his benefit.”
Inc.
v.
Sass,
(citation
and
907
A.2d
internal
828,
843
quotation
(Md.
marks
Ct.
Cattail Assocs.,
Spec.
App.
omitted).
2006)
However,
“[a]lthough a party may waive a provision included in a contract
for
that
party’s
contractual
transaction.”
sole
requirement
Id.
benefit,
that
a
party
benefits
(citation
and
omitted).
16
both
internal
cannot
sides
waive
to
quotation
a
the
marks
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Kolb contends that the PICP provision at issue—-which gives
him the option to buy shares of ACRA Ireland for 10 Irish pounds
per share—-also benefits ACRA Ireland because it would receive
monetary compensation for each option exercised.
However, the
rule
a
that
a
contractual
provision—-typically
condition
precedent—-benefiting both parties cannot be unilaterally waived
is
intended
§
39:24 (“[A] waiver of contract requirements and conditions
may
not
be
nonwaiving
question.”).
to
protect
made
party
the
nonwaiving
unilaterally
of
a
when
benefit
party.
it
would
under
the
13
Williston
deprive
provision
the
in
Here, ACRA Ireland, the nonwaiving party, does not
contend that the provision granting Kolb share options was made
for
its
benefit.
In
fact,
it
explicitly
argues
that
the
provision was for Kolb’s exclusive benefit.
Kolb’s argument that his waiver is not enforceable because
ACRA Ireland would have benefited from his exercise of the share
options turns ACRA Ireland’s shield into his own sword by using
the rule to avoid an otherwise valid waiver.
contrary
to
the
law
of
waiver.
See
13
Such a result is
Williston
§ 39:15
(“[O]nce it has been established that a right has been waived,
the party possessing the right prior to the waiver is generally
precluded from asserting it in a court of law.”).
Kolb has not
cited, and we have not found, any case in which a party who
waived a contractual provision was later able to circumvent that
17
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waiver
by
Filed: 11/20/2015
asserting
that
benefit of both parties.
the
Pg: 18 of 22
provision
was
actually
for
the
We will not allow Kolb to do so here.
3.
Finally, Kolb argues that ACRA Ireland and ACRA USA may not
enforce the waivers contained in the SPA and related documents
because they were not parties to the SPA.
Kolb
bases
this
contention
on
his
Irish
law
expert’s
opinion that under Irish law, “‘no stranger to the consideration
can
take
advantage
benefit.’” 8
of
J.A. 1451.
a
contract,
although
made
for
his
The ACRA entities’ Irish law expert
agrees to an extent, opining that “the doctrine of privity of
contract would ordinarily prevent a non-party to the contract
from
taking
legal
proceedings
to
affirmatively
enforce
that
contract against one of the parties to it” under Irish law.
J.A. 1985.
However, the ACRA entities’ expert opines that lack
of privity would not preclude ACRA from raising Kolb’s waivers
in the SPA and related documents as an affirmative defense.
8
Kolb’s expert cites the Irish case of Murphy v. Bower,
[1868] 2 IR
506 (Ct. Com. Pl. 1866) (Ir.), as the source of
this quotation.
However, the quotation does not appear in
Murphy.
The quotation does appear in Tweedle v. Atkinson,
(1861) 121 Eng. Rep. 762, 764, 1 B&S 393, 398 (Eng.), an English
case also cited by Kolb’s expert in the same discussion.
Both
experts agree that Irish courts consider English law persuasive
authority.
18
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We agree.
Pg: 19 of 22
Murphy v. Bower, [1868] 2 IR
506 (Ct. Com. Pl.
1866) (Ir.), which Kolb’s expert acknowledges is “[o]ne of the
most important Irish cases on the law of privity of contract,”
J.A.
1451,
held
that
“where
the
foundation
of
the
right
of
action is rested upon contract, no one can maintain an action
who is not a party to the contract.”
(emphasis added).
right
of
action
Murphy, 2 IR at 512
Here, ACRA is not attempting to maintain a
against
Kolb
based
on
the
SPA
and
related
documents, but rather is using Kolb’s waiver as an affirmative
defense.
Kolb cannot use privity of contract principles to escape
the consequences of his waiver.
rights
under
the
PICP
in
any
Kolb could have waived his
number
of
ways.
See
BarGale
Indus., Inc. v. Robert Realty Co., 343 A.2d 529, 533 (Md. 1975)
(under Maryland law, “[a] waiver may be either verbal or in
writing;
and
it
is
not
direct and positive.
necessary
that
the
waiver
should
be
It may result from implication and usage,
or from any understanding between the parties which is of a
character
to
satisfy
the
mind
that
a
waiver
is
intended.”
(citations and internal quotation marks omitted)).
The fact
that Kolb’s waiver happened to be in a contract with a third
party
governed
by
Irish
law
is
inconsequential.
Once
Kolb
waived his rights under the PICP, those rights were extinguished
as a matter of law.
See 13 Williston § 39:15.
19
Kolb cannot
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circumvent an otherwise-valid waiver simply because ACRA Ireland
and ACRA USA were not parties to the contract containing the
waiver.
Lack of privity does not prevent ACRA from asserting
the affirmative defense of waiver.
V.
The Maryland Court of Appeals has noted that “[g]iven the
highly factual nature of the waiver inquiry, it is an uncommon
case in which the issue can be resolved by summary judgment.”
Hovnanian Land Inv. Grp. v. Annapolis Towne Ctr. at Parole, LLC,
25 A.3d 967, 984 (Md. 2011).
“Occasionally, however, the waiver
is so obvious that a ruling can be made as a matter of law.”
Id. (describing the cases where summary judgment is appropriate
as an “unusual category”).
This is such a case.
in a number of ways.
Kolb waived his rights under the PICP
First, and as relied on by the district
court, by signing the SPA Kolb “irrevocably waive[d] any claims
against
[ACRA
Ireland
or
any
subsidiary,]
its
agent,
or
employees which he . . . may have outstanding at Completion.”
J.A. 464.
Moreover, in the SPA, Kolb warranted that there was
“no agreement, arrangement or obligation in force which calls
for the present or future allotment, issue or transfer of, or
the grant to any person of the right . . . to call for the
allotment,
issue
or
transfer
of,
20
any
share
.
.
.
of
[ACRA
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Ireland or any subsidiary] . . . .”
warranted
offered
that
nor
neither
is
ACRA
proposing
Ireland
to
J.A. 491.
nor
a
introduce
Kolb also
subsidiary
any
.
.
.
“has
share
option/purchase or retention scheme for any employee or other
person.”
J.A. 515.
Second, in the letter required by Schedule 3 of the SPA,
which Kolb delivered to ACRA Ireland, he stated that he had “no
claim or right of action of any kind outstanding against [ACRA
Ireland or any subsidiary]” and to the extent that any such
claim
existed
claim.”
or
may
exist,
he
“irrevocably
waiv[ed]
such
J.A. 598.
Third
and
finally,
in
his
notice
exercising
the
2010
option, Kolb “confirm[ed] and acknowledge[d]” that apart from
the shares acquired by exercising the 2003 and 2010 options, he
had
“no
other
rights
or
entitlements
in
respect
of
Shares.”
J.A. 574.
The
SPA
unequivocally
entities,
and
related
waived
including
documents
clearly
any
rights
he
had
any
rights
arising
show
against
under
that
Kolb
the
ACRA
the
PICP.
Therefore, the district court properly granted summary judgment
in favor of ACRA Ireland and ACRA USA. 9
9
Because Kolb waived any claims against ACRA Ireland and
ACRA USA, the district court properly denied Kolb’s second
motion to amend his complaint.
See Steinburg v. Chesterfield
(Continued)
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VI.
For the foregoing reasons, we affirm the district court.
AFFIRMED
Cnty. Planning Comm'n, 527 F.3d 377, 390 (4th Cir. 2008)
(holding that a district court does not abuse its discretion in
denying a motion to amend where the amendment would have been
futile).
22
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