United States Court of Appeals For the First Circuit

No. 19-1233

KEISUKE SUZUKI,

Plaintiff, Appellant,

v.

ABIOMED, INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Denise J. Casper, U.S. District Judge]

Before

Lynch, Selya, and Barron, Circuit Judges.

William T. Harrington, with whom Christine A. Maglione and Harrington Law, P.C. were on brief, for appellant. Kenneth M. Bello, with whom Alexandra D. Thaler and Bello Welsh LLP were on brief, for appellee.

November 27, 2019 SELYA, Circuit Judge. This case involves a claimed

breach of the implied covenant of good faith and fair dealing

brought by a former executive who contends that his quondam

employer, a producer of heart pumps, terminated his employment,

allegedly to deprive him of a sizable equity incentive. Because

the plaintiff has failed to present sufficient evidence that this

equity incentive constituted compensation already earned by virtue

of his past work under state law, we affirm the district court's

entry of summary judgment in the defendant's favor. The tale

follows.

I. BACKGROUND

We rehearse the facts and travel of the case, viewing

those facts in the light most flattering to the summary judgment

loser (here, the plaintiff). See Flovac, Inc. v. Airvac, Inc.,

(1st Cir. 2016). Defendant-appellee Abiomed,

Inc. designs, manufactures, and markets temporary mechanical

circulatory support devices, including the Impella line of heart

pumps. In early 2009, plaintiff-appellant Keisuke Suzuki started

consulting with Abiomed about the company's efforts to secure

Japanese regulatory approval for its Impella devices. The approval

process involves the submission of an application — known as the

Shonin application — to Japan's Pharmaceutical and Medical Device

Agency (PMDA). Submission of the Shonin application typically is

followed by various tests, audits, and expert panel reviews.

- 2 - Thereafter, the PMDA makes a recommendation to the so-called Upper

Panel of Japan's Ministry of Health, Labour and Welfare (MHLW).

Once the Upper Panel's review is complete, the MHLW announces its

final decision regarding approval.

In April of 2010, Suzuki began to work full-time as

Abiomed's vice-president of Asia — a position in which he assumed

primary responsibility for shepherding the Impella devices through

the Japanese regulatory approval process. His employment was

memorialized by an offer letter and a nondisclosure agreement. In

addition to a base salary, an annual bonus potential, and a

commission opportunity, the offer letter outlined three equity

awards to be paid upon the achievement of certain milestones en

route to regulatory approval: first, the issuance of 10,000 shares

of Abiomed common stock upon the submission of the Shonin

application; second, the issuance of 20,000 shares "when the MHLW

approve[d] Impella for general use"; and third, the issuance of

15,000 shares when Abiomed gained "[a]pproval for [the] targeted

reimbursement level of Impella."

Withal, the offer letter contained several caveats. To

begin, it stated that in order to receive the equity awards, Suzuki

must be actively employed by Abiomed when the relevant milestone

was achieved. Additionally, Abiomed "reserve[d] the right on a

prospective basis to modify, change or eliminate its

[c]ompensation, [b]onus or [b]enefit programs." Last but not

- 3 - least, the offer letter admonished that it was not to be "construed

as an agreement, either express or implied, to employ [Suzuki] for

any stated term," and it in no way altered Abiomed's policy "under

which both [Suzuki] and [Abiomed] remain[ed] free to end the

employment relationship at any time and for any reason."

On the advice of a friend who was also an attorney,

Suzuki requested the insertion of a provision to the effect that

if his employment was terminated without cause, he would retain

"the right to claim the equity" as long as a particular milestone

was achieved "within 6 months of [his] departure, as the majority

of the work would be done before that." Suzuki added that a

provision allowing him to claim the equity if a milestone was

achieved within three months after his dismissal would also be

"reasonable." Frank LeBlanc, Abiomed's chief human resources

official, responded that Abiomed declined to accommodate this

request, as its policy with respect to event-based equity

incentives entailed "grant[ing] those shares only after the event

has occurred, and only to active employees." Suzuki backed off,

replying: "Fair enough. I had to ask." He proceeded to sign the

offer letter that same day.

Eight days later, Suzuki executed the nondisclosure

agreement. This agreement provided, in pertinent part, that

Abiomed could terminate Suzuki's employment at any time with or

without cause during the first six months of his tenure.

- 4 - Thereafter, Abiomed could discharge him without cause only upon

twenty-eight days' written notice. Relatedly, the agreement

allowed Suzuki to resign his employment without cause at any time

upon twenty-eight days' written notice.

Around the same time that he assumed his new role, Suzuki

estimated that the Shonin application would be submitted by August

of 2010 and that approval of the Impella devices would take

approximately two years. These predictions proved overly

optimistic, and it was not until late March of 2011 that Abiomed

submitted the Shonin application and (in accordance with the 2010

offer letter) issued 10,000 shares of its common stock to Suzuki.

Between 2011 and 2014, Suzuki and his co-workers responded to well

over one hundred questions posed by the PMDA. During this period,

Suzuki's projected timeline for approval shifted. In periodic

presentations to Abiomed executives between 2011 and 2013, Suzuki

indicated that approval would occur in one to two years. On at

least two occasions, Suzuki intimated to colleagues that the PMDA

was poised to approve the Impella devices — but approval

nonetheless remained elusive.

The parties hotly dispute the reasons for this sluggish

pace. Suzuki maintains that Abiomed failed to prioritize the

Japanese approval effort, while various Abiomed executives stated

in depositions and affidavits that Suzuki's caustic style and

aggressive tactics stunted progress. This criticism does not

- 5 - appear to have come out of thin air: the record contains ample

uncontroverted evidence of abrasive e-mails from Suzuki to Abiomed

executives, together with evidence that Suzuki stormed out of at

least three meetings with colleagues during his five-year tenure.

Equally concerning, Abiomed learned in January of 2015 that

Yoshimasa Yokoyama, the PMDA's lead reviewer of Abiomed's Shonin

application, had reported that "bad rumors" were circulating about

Suzuki. These rumors depicted Suzuki as telling a "biased story"

about the Impella devices, "blaming PMDA for delay," and recruiting

Japanese physicians to pressure regulators for approval (a tactic

that Suzuki asserts he undertook with the blessing of senior

management).

Shortly after learning about Yokoyama's concerns,

Abiomed encountered several new roadblocks on the path to

regulatory approval. For one thing, Suzuki informed Abiomed

executives that the PMDA would postpone an in-person meeting (the

Menkai meeting) planned for the end of January. Andrew Greenfield,

Abiomed's vice-president of healthcare solutions, was told that

the PMDA delayed this meeting because it was continuing to assess

issues related to the Shonin application. For another thing, in

February of 2015, Suzuki informed Abiomed executives that the PMDA

was requesting information about the distinctions between various

versions of the 2.5 and 5.0 Impella models — questions that Suzuki

believed would generate a significant amount of work. By that

- 6 - spring, some of Suzuki's correspondence contained glimmers of

doubt about the prospects for approval.

Abiomed executives weighed Suzuki's future with the

company, including the possibility of terminating his employment,

as early as April of 2014. An e-mail exchange from September of

2014 between Greenfield and Abiomed's chief executive officer,

Michael Minogue, indicates that the two thought a "change" was

necessary because Suzuki's caustic communication style had "gotten

worse," despite "multiple discussions about [the] behavior." The

matter simmered, however, until the following year.

On May 14, 2015, the pot came to a boil. Greenfield met

with Suzuki and told him that Abiomed intended to change his duties

and compensation structure, given Suzuki's failure to secure

approval of the Impella devices despite a five-year run-up. The

following week, Greenfield delivered Suzuki's annual performance

review, again telling Suzuki that his failure to achieve approval

necessitated a changed role. This time, though, Greenfield added

that Suzuki would not receive an annual bonus. In the self-

assessment portion of this performance review, Suzuki gave himself

the lowest ranking possible in the category of achieving approval,

stating: "Bottom line, [I] was not able to gain approval."

On May 20, Greenfield sent Suzuki a letter offering him

continued employment in a new role and with an altered compensation

structure. Under this proposal, Suzuki would serve as an

- 7 - individual contributor "focused specifically on regulatory

milestones in Japan" rather than as the vice-president of Asia

with (at least nominally) a broader portfolio. The letter provided

that any outstanding equity incentives from Suzuki's existing

employment arrangement would be replaced with two opportunities

for awards of restricted stock units (RSUs): first, an award of

10,000 RSUs upon the MHLW's approval of the Impella devices "for

general use in Japan"; and second, an award of 5,000 RSUs for

approval of the "targeted reimbursement level of Impella." Half

of each award would vest upon the occurrence of the specified

milestone and the other half would vest on the first anniversary

of that milestone's achievement, provided that Suzuki continued to

be employed by Abiomed at those times. In addition, the letter

made clear that all of the specified milestones would have to be

completed within eighteen months of Suzuki's signature.

Two days later, Greenfield sent Suzuki a revised letter.

This second letter mirrored the first in most pertinent respects,

but it revised the number, amounts, and wording of the proposed

equity incentive awards. It also contained a stipulation, which

stated that the "aggregate total value of all grant rewards may

not exceed $500,000 USD."

On May 26, Suzuki sent Greenfield a "counter" proposal,

rejecting the terms suggested by Greenfield but acknowledging that

"changes [were] necessary to improve the limited progress achieved

- 8 - toward resolution of outstanding PMDA approval items." Suzuki

expressed his concern that the "whole purpose" of Greenfield's

suggestion was to renege on "the original deal between [Suzuki]

and the company, as the value of the equity [has] risen far beyond

what the company [had] foreseen" in 2010.1 On June 3, Greenfield

informed LeBlanc that he intended to terminate Suzuki's employment

by the middle of the month. In Greenfield's view, Suzuki's failure

to achieve regulatory approval rendered his impending dismissal

"for cause." Greenfield scoffed at Suzuki's assertion that the

suggested revision of Suzuki's role was "intended to deprive

[Suzuki] of equity," observing that Suzuki "clearly does not

understand that he has no entitlement to the other equity as he

has not achieved 2 out of the 3 milestones."

The Menkai meeting between Abiomed and the PMDA took

place on June 9, 2015. The parties agree that Suzuki had at least

"some involvement" in setting up the meeting. William Bolt,

Abiomed's senior vice-president of global product operations,

served as its primary spokesman, although Suzuki was in attendance.

The meeting proved productive but not definitive. The PMDA

1 Abiomed's common stock was selling for $10.00 per share at the time Suzuki began his full-time employment in 2010. By May of 2015, the stock price had climbed to $68.30 per share. When Suzuki's employment was terminated in June of 2015, the per-share price was $67.16. That price brought the potential value of the 20,000 shares promised upon achievement of the second milestone to $1,343,200.00.

- 9 - indicated that it would not require Abiomed to split its Shonin

application between the Impella 2.5 and 5.0 models. Moreover, the

PMDA clarified that it would not require Abiomed to undergo a human

clinical study. Both of these developments promised to save

Abiomed significant work and resources. Even so, the PMDA did not

guarantee ultimate approval of the Impella devices but, rather,

made pellucid that Abiomed would need to conduct additional tests,

pass muster with another expert panel, and revise the Shonin

application to reflect the most current versions of the Impella

pumps.

Several of Suzuki's e-mails, sent in the wake of the

Menkai meeting, reflect his concern that regulatory approval might

be significantly delayed. In one e-mail, Suzuki stated that it

would be "very challenging" for Abiomed to achieve approval by the

end of March of 2016, given the PMDA's insistence that Abiomed go

before another expert panel. A separate e-mail expressed Suzuki's

doubts about Abiomed's chances of securing approval by April of

2016: "My sense is that if we cannot deliver by year end, then we

will miss the boat again . . . . PMDA will drop the towel, and we

will be asked to withdraw . . . ."

On June 15, 2015, Suzuki e-mailed Minogue, Greenfield,

and Bolt, declaring that he had "vested rights in the 20,000

shares" set forth in the 2010 offer letter both because he was

responsible for the "positive outcome" of the Menkai meeting and

- 10 - because he had "executed substantial performance" toward obtaining

approval of the Impella devices. Bolt privately debunked Suzuki's

suggestion that approval was imminent, writing to Greenfield and

LeBlanc that "[t]here is a lot that needs to occur, and to go well,

in order for us ultimately to get PMDA approval." Greenfield

responded to Suzuki on June 17, stating that although the Menkai

meeting had been productive, approval was not "virtually

guaranteed," and the meeting could not be regarded as a "home run."

At best, Greenfield wrote, approval remained "many months away

(likely well into 2016)." Thus, Suzuki "really need[ed] to decide

whether [he] want[ed] to continue working with Abiomed in a

capacity where [he could] contribute to the regulatory approval

effort, but on terms that are reasonable and [that] the Company is

prepared to offer."

Suzuki and Greenfield met the next day. Suzuki

reiterated that he would not accept Greenfield's suggested terms

of continued employment. Greenfield rejoined by terminating

Suzuki's employment on the spot, without giving him twenty-eight

days' written notice. Nor did Abiomed pay Suzuki for an additional

twenty-eight days until after suit was commenced. And it did not

contemporaneously inform Suzuki that his ouster was for cause.

Abiomed finally gained Japanese regulatory approval for

the Impella devices' use for "drug resistant acute heart failure,

such as cardiogenic shock" on September 27, 2016. The parties

- 11 - dispute whether this approval was for "general use" of the Impella

devices as that term was used in the 2010 offer letter. It is

undisputed that Abiomed completed at least some additional work

during the fifteen months between Suzuki's firing and the obtaining

of regulatory approval. Such additional work included conducting

new tests, submitting supplemental data, and answering regulators'

recurring questions.

In late 2016, Suzuki repaired to the United States

District Court for the District of Massachusetts. Invoking

diversity jurisdiction, see

(a), he sued Abiomed

on an array of theories. He eventually abandoned all but one of

his claims2: his claim for breach of the implied covenant of good

faith and fair dealing. After the close of discovery, Abiomed

moved for summary judgment. Following briefing and oral argument,

the district court granted Abiomed's motion, see Suzuki v. Abiomed,

Inc., No. 16-12214-DJC,

, at *12 (D. Mass. Jan. 4,

2019), concluding that Suzuki had not presented sufficient

evidence to show either that he was on the brink of achieving the

second milestone at the time of his discharge or that the 20,000

2 Suzuki voluntarily dismissed a claim for retaliation under the Massachusetts Wage Act, see Mass. Gen. Laws ch. 149, § 148A, as well as that portion of his breach of contract claim alleging Abiomed's failure to provide him twenty-eight days' written notice of termination. He later declined to oppose summary judgment with respect to his promissory estoppel and quantum meruit claims, and the district court entered judgment against him on those claims. None of these claims is presently before us.

- 12 - shares associated with that milestone comprised compensation that

he had fairly earned and legitimately expected by virtue of his

past work, see id. at *11. This timely appeal ensued.

II. ANALYSIS

We review the district court's entry of summary judgment

de novo. See Flovac, Inc.,

. Summary judgment may

be granted only if examination of the record in the light most

congenial to the nonmovant reveals "no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter

of law." Fed. R. Civ. P. 56(a); see Faiella v. Fed. Nat'l Mortg.

Ass'n,

(1st Cir. 2019). A plaintiff opposing

summary judgment bears "the burden of producing specific facts

sufficient to deflect the swing of the summary judgment scythe."

Hannon v. Beard,

(1st Cir. 2011) (quoting Mulvihill

v. Top-Flite Golf Co.,

(1st Cir. 2003)). With

this rudimentary foundation in place, we turn to the analytic

framework that governs Suzuki's claim for breach of the implied

covenant of good faith and fair dealing. We then proceed to the

merits of his claim.

A. The Analytic Framework.

We pause at the threshold to untangle the

jurisprudential strands that run through application of the

implied covenant of good faith and fair dealing in the employment

context. Inasmuch as this case is founded on diversity

- 13 - jurisdiction, state law supplies the substantive rules of

decision. See Erie R.R. Co. v. Tompkins,

(1938);

Potvin v. Speedway LLC,

(1st Cir. 2018). The

parties agree that Massachusetts law controls, and we accept their

reasonable agreement. See Borden v. Paul Revere Life Ins. Co.,

(1st Cir. 1991).

In Massachusetts, every contract is subject to an

implied covenant of good faith and fair dealing "to some extent."

Ayash v. Dana-Farber Cancer Inst.,

(Mass.

2005). Generally speaking, this implied covenant provides that

neither party to a contract "shall do anything which will have the

effect of destroying or injuring the right of the other party to

receive the fruits of the contract." A.L. Prime Energy Consultant,

Inc. v. Mass. Bay Transp. Auth.,

(Mass. 2018)

(quoting Weiler v. PortfolioScope, Inc.,

, 361 (Mass.

2014)). A breach of the covenant occurs when one party to a

contract "violates the reasonable expectations of the other."

(quoting Weiler, 12 N.E.3d at 362).

Employers have been found liable under the implied

covenant in "varying contexts and subject to strict limitations."

Ayash,

. Of particular pertinence for present

purposes, the Massachusetts Supreme Judicial Court (SJC) has held

"that an employer is accountable to a discharged employee for

unpaid compensation if the employee [was] terminated in bad faith

- 14 - and the compensation is clearly connected to work already

performed." Harrison v. NetCentric Corp.,

(Mass. 2001) (citing Fortune v. Nat'l Cash Register Co.,

(Mass. 1977)). In this context, the paradigmatic

example of bad faith occurs when an employer seeks to avoid the

payment of earned compensation by discharging an employee who is

"on the brink of successfully completing" a sale or some other

milestone that will trigger entitlement to the disputed

compensation. Fortune,

; accord Maddaloni v. W.

Mass. Bus Lines, Inc.,

(Mass. 1982).

In Gram v. Liberty Mutual Insurance Co.,

(Mass. 1981) (Gram I), the SJC extended the Fortune doctrine

to circumstances in which an at-will employee is discharged without

good cause (but absent any showing of bad faith). Although

termination of employment without good cause is not alone a breach

of the implied covenant, an employer may sometimes be held liable

for lost compensation if that compensation is "clearly related" to

the dismissed employee's "past service."

. The SJC

has cautioned, however, that the recovery permitted in Gram I

"pressed to the limit the recovery allowed to an at-will employee

discharged without cause." Gram v. Liberty Mut. Ins. Co.,

(Mass. 1984) (Gram II).

In the case at hand, the district court deemed Suzuki an

at-will employee and examined his implied covenant claim

- 15 - exclusively through the lens of the Fortune/Gram doctrine. See

Suzuki,

, at *8-9, 8 n.8. Suzuki objects to both

determinations. Pointing to the nondisclosure agreement's

stipulation that, once he had been working for six months, Abiomed

could fire him without cause only upon twenty-eight days' written

notice, Suzuki contends that Abiomed was obligated to employ him

for a definite term (twenty-eight days), thus removing him from

the at-will employment realm and, by extension, the Fortune/Gram

framework.3 As a corollary, Suzuki submits that he can prevail by

showing — under the standards normally applicable to implied

covenant claims brought outside the at-will employment context —

that Abiomed engaged in "unfair leveraging" and violated his

"reasonable expectations" by pressuring him to accept a revised

employment arrangement and then dismissing him when he refused

(all for the illicit purpose of depriving him of the bargained-

for equity incentives).

We need not decide whether Suzuki was an at-will employee

under Massachusetts law because, in any event, his claim fits

comfortably within the ambit of the Fortune/Gram doctrine. The

2010 offer letter explicitly stated that Abiomed was not obligated

3 In Massachusetts, "[t]he general rule is that an at-will employee may be terminated at any time for any reason or for no reason at all." Upton v. JWP Businessland,

(Mass. 1997). Employment contracts for a "definite period" of time are therefore not at will. Willitts v. Roman Catholic Archbishop of Bos.,

(Mass. 1991).

- 16 - to employ Suzuki "for any stated term" and that either party was

"free to end the employment relationship at any time and for any

reason." Although the nondisclosure agreement — signed days after

the offer letter — added a twenty-eight day notice provision for

termination without cause, nothing in that agreement altered

Abiomed's basic ability to discharge Suzuki with or without cause.

In this critical sense, then, Suzuki's employment arrangement was

indistinguishable from the sort of employment contract typically

involved in Fortune/Gram cases. See, e.g., Fortune,

(addressing employment contract that "reserved to the parties

an explicit power to terminate the contract without cause on

written notice").

What is more, the offer letter does not establish any

for-cause termination requirement on its face, and Abiomed

eventually paid Suzuki's salary for the twenty-eight days that the

notice provision specified. Suzuki's claim, therefore, is only

that Abiomed cashiered him to avoid paying equity incentives to

which Suzuki was entitled by virtue of his past services. The

Fortune/Gram framework was designed to address just such a

scenario. See Maddaloni,

. The presence of a

written notice requirement does not make an employee any less

vulnerable than the mine-run of at-will employees to the danger

that an employer may use termination of employment as a means of

depriving workers "of compensation fairly earned and legitimately

- 17 - expected for services already rendered." Cochran v. Quest

Software, Inc.,

(1st Cir. 2003).

Finally, Suzuki has not shown that he has recourse to

some species of implied covenant claim independent of the

Fortune/Gram doctrine. Although the range of theories available

under the implied covenant in the employment context is indistinct,

the SJC has taken pains to note that employers, "in varying

contexts and subject to strict limitations," have been found liable

for breach of the implied covenant "only in circumstances when an

at-will employee has been terminated in bad faith." Ayash,

. In support of that statement, the SJC cited only

cases resolved under the Fortune/Gram doctrine.4 See

To be sure, the SJC (on one occasion) rejected, without

elaboration, an argument that a claim for breach of the implied

covenant "in the context of an employment relationship may never

exist absent an allegation of a 'bad faith' termination." Eigerman

v. Putnam Invs., Inc.,

, 1265 n.9 (Mass. 2007).5

4 The SJC has permitted at-will employees to bring wrongful termination claims when their dismissal allegedly violates a clearly established public policy. See King v. Driscoll,

(Mass. 1994) (collecting cases); see also Wright v. Shriners Hosp. for Crippled Children,

(Mass. 1992). Suzuki, though, has not mounted such a claim. 5 In that case, the court examined whether an employer violated an employee's reasonable expectations under his employment agreement by adopting an informal policy discouraging participants in an employee equity participation plan from exercising their right to tender shares received pursuant to the plan. See Eigerman,

.

- 18 - But we are aware of no case — and Suzuki has cited none — in which

the SJC has evaluated allegations that an employer dismissed an

employee for the purpose of depriving him of earned compensation

under any framework other than the Fortune/Gram doctrine.6 The

precedent upon which Suzuki principally relies in arguing that

Abiomed engaged in "unfair leveraging" is certainly not such a

decision. See Anthony's Pier Four, Inc. v. HBC Assocs.,

(Mass. 1991) (upholding finding of breach of implied

covenant in the context of a commercial development agreement).

Any argument that Abiomed either engaged in "unfair leveraging" or

transgressed Suzuki's "reasonable expectations" under his

employment arrangement is part and parcel of Suzuki's claim under

the Fortune/Gram doctrine (that Abiomed fired him to avoid paying

an equity incentive that he contends he had earned by virtue of

his past work).

6 In an unwarranted burst of optimism, Suzuki points to Williams v. B & K Medical Systems, Inc.,

(Mass. App. Ct. 2000). But the claim at issue in Williams is easily distinguishable. The Williams plaintiff alleged that his employer breached the employment agreement when it discharged him for allegedly pocketing excessive commissions and reimbursements, limited his severance pay, and threatened to ruin his career, not that it discharged him for the purpose of depriving him of compensation earned by virtue of his past labors. See

. And perhaps more important, Williams predates the SJC's suggestion in Ayash,

, that employers have been found liable under the implied covenant "only in circumstances" covered by the Fortune/Gram doctrine and "subject to strict limitations." We decline to outpace the SJC based on so slender a reed.

- 19 - To sum up, we conclude that the twenty-eight-day notice

provision in Suzuki's nondisclosure agreement does not pretermit

application of the Fortune/Gram doctrine. So, too, we conclude

that the Fortune/Gram doctrine is the sole vehicle under

Massachusetts law through which Suzuki may sue his employer for

allegedly violating the implied covenant of good faith and fair

dealing by discharging him to work a deprivation of earned

compensation. Consequently, we proceed to test Suzuki's claim

exclusively in the Fortune/Gram crucible.

B. The Merits.

This brings us to the substance of the district court's

summary judgment ruling. After careful consideration, we agree

with the district court, see Suzuki,

, at *11, that

Suzuki has failed to present evidence sufficient to make out a

genuine factual dispute about whether Abiomed deprived him of

compensation he earned by virtue of past services. Under the

Fortune/Gram doctrine, this failure is fatal to Suzuki's claim.

We elaborate below.

No iteration of the Fortune/Gram doctrine permits

recovery of "future compensation for future services." McCone v.

New Eng. Tel. & Tel. Co.,

(Mass. 1984) (quoting

Gram II,

). Instead, a plaintiff pursuing a

Fortune/Gram claim must have been deprived of "identifiable,

future benefit[s]" that are sufficiently "reflective of past

- 20 - services."

(quoting Gram II,

). Put another

way, such a claim is limited to "money that [the plaintiff] had

fairly earned and legitimately expected" because of work already

performed. Maddaloni,

. Our case law echoes

this principle. See, e.g., Cochran,

; Sands v.

Ridefilm Corp.,

(1st Cir. 2000); Sargent v.

Tenaska, Inc.,

(1st Cir. 1997).

In this instance, it is undisputed that, at the time of

his discharge, Suzuki was not entitled to the second equity

incentive under the literal terms of his employment arrangement.

After all, the 2010 offer letter specified that Suzuki would only

receive the 20,000 shares if his employment was still ongoing when

the MHLW approved the Impella devices, and Suzuki concedes that

this milestone had not yet been reached when Abiomed fired him.7

Although Suzuki contends that the PMDA "made clear" that it was

"prepared to approve" the Impella devices at the Menkai meeting,

he admitted during his deposition that the PMDA did not guarantee

approval at that time.

7 We note that our analysis applies with equal force to any claim of entitlement that Suzuki may make to the third equity incentive (which promised 15,000 shares "when [a]pproval for [the] targeted reimbursement level of Impella [was] gained"). There is no question that this milestone had not been achieved at the time of Suzuki's dismissal. And in all events, any argument that Suzuki was entitled to the third equity incentive by virtue of past services is underdeveloped and, thus, waived. See United States v. Zannino,

(1st Cir. 1990).

- 21 - Furthermore, Abiomed was neither on the cusp of, nor

even close to, regulatory approval when Suzuki was cashiered.8 The

Menkai meeting was held in June of 2015, and Suzuki's own

correspondence after that meeting acknowledged that it would be

"very challenging" to achieve approval by the end of March of 2016.

Suzuki cited several reasons for the anticipated delay, including

the need to conduct additional tests and the fact that yet another

expert panel would have to be convened. Cf. Coll v. PB Diagnostic

Sys., Inc.,

(1st Cir. 1995) (finding benefit

not due to employee where employee's "own writings" indicated that

several goals necessary for "payout" would not be met). Even

Suzuki's forecasts proved too generous: the uncontroverted record

reflects that Abiomed, following Suzuki's dismissal, expended

fifteen months of auxiliary effort — including conducting

supplemental tests, submitting new data, answering regulators'

questions, and meeting with physician advocates — before

eventually achieving regulatory approval in September of 2016.

8 Suzuki faults the district court for requiring proof that he was "on the brink" of achieving the second equity incentive. Although Suzuki mischaracterizes the district court's opinion, we agree with him that the "on the brink" standard is not a necessary element of proof under the Fortune/Gram doctrine. Fortune,

. Rather, whether an employee is "on the brink" of achieving a milestone at the time of discharge is simply one relevant data point in assessing an employer's true motives. See

In this case, though, the summary judgment record bears out the district court's conclusion that Suzuki was by no means on the brink of securing regulatory approval at the time of his ouster. See Suzuki,

, at *11.

- 22 - Below, Suzuki asserted that the executive who described

this additional work in Abiomed's answers to interrogatories

(Greenfield) lacked personal knowledge of what had been done. This

assertion falls well short of creating a genuine dispute of

material fact. Greenfield answered the interrogatories on behalf

of Abiomed, using information available within the company. See

Fed. R. Civ. P. 33(b)(1)(B). Since Rule 33(b)(1)(B) commands such

corporate officers to "furnish the information available" to the

company and since the record contains no evidence to the contrary,

the district court acted appropriately in treating Greenfield's

answers as encompassing all relevant information and data

available within Abiomed. And in any event, the executive Suzuki

claims had intimate knowledge of Abiomed's activities during this

period (Bolt) made it plain, both by affidavit and in his

deposition, that Abiomed was forced to perform substantial

additional work between June of 2015 and September of 2016.

Suzuki strives to persuade us that the second equity

incentive was sufficiently related to services previously rendered

because the "vast majority of the work" necessary for approval had

already been completed at the time of his discharge. He grounds

this effort principally on his review of Abiomed's summary of

technical documents (STED), which catalogues all the tests that

Abiomed conducted on the Impella, year by year. He estimates that,

by the time of his firing, Abiomed had completed approximately

- 23 - eighty-six percent of the tests ultimately submitted to the PMDA

anent the "disposable components of the Impella application," as

well as one hundred percent of the tests "submitted respecting the

Impella controller."

Abiomed counters that Suzuki's analysis of the STED is

inadmissible for various reasons, and Abiomed asked the district

court to strike it. That court deemed it unnecessary to reach the

issue of admissibility, and so do we. Even assuming the

admissibility of Suzuki's analysis, it is apparent that Abiomed

conducted a sizable number of new tests (twenty, by Suzuki's count)

between the termination of Suzuki's employment and the obtaining

of regulatory approval.

In urging us to discount the significance of this

additional work, Suzuki leans heavily on the decision of the

Massachusetts Appeals Court in Cataldo v. Zuckerman,

(Mass. App. Ct. 1985). There, the Appeals Court was faced

with a breach of contract claim by a discharged construction

supervisor against his former employer (a real estate developer).

See

. The pertinent employment agreement provided

that the plaintiff would "own a portion of the [d]eveloper's

[e]quity" in two specified projects and in future projects, with

the developer having the right to buy back the plaintiff's interest

in any project pending at the time of the plaintiff's dismissal.

(alterations in original). The Appeals Court deemed

- 24 - the plaintiff's interest in future projects that had progressed

"beyond the stage of a mere hope" and to which the plaintiff had

devoted "a significant amount of work" a future benefit

sufficiently reflective of past labors to come within the reach of

the Fortune/Gram doctrine.

. The court explained

that although "[a]ctual realization . . . of the value of any share

of the developer's equity was for the future," the plaintiff's

employment agreement made pellucid that "ownership of the

possibility was intended to be and was part of [the plaintiff's]

day-to-day compensation for work currently being done."

.

Suzuki attempts to draw a parallel between his

circumstances and the circumstances of the Cataldo plaintiff. He

says that like the latter's interest in future projects, the equity

incentives described in the 2010 offer letter induced his continued

efforts toward regulatory approval — an endeavor that had gone

beyond the stage of a mere hope and to which he had devoted a

significant amount of work.

Suzuki's reliance on Cataldo is misplaced. To begin, we

think it plain that the SJC would cabin Cataldo's reach. In its

only decision addressing the case, the SJC deemed Cataldo "easily

distinguishable" in the Fortune/Gram context. Harrison,

. Following the SJC's lead, we find Cataldo readily

distinguishable from the case at hand. Whereas the employment

- 25 - agreement in Cataldo granted an ownership interest in equity

associated with future projects, leaving open only what the exact

value of that interest would ultimately be, see Cataldo,

& n.4, the employment arrangement here gave Suzuki a future

right to equity incentive awards only if the associated milestones

were achieved during his active employment. Thus, unlike in

Cataldo, "ownership of the possibility" of attaining the equity

incentives did not comprise part of Suzuki's "day-to-day

compensation" such that the second equity incentive could be

regarded as reflective of services that Suzuki already had

rendered.

.

We do not gainsay that Suzuki helped lay some of the

groundwork for eventual approval of the Impella devices during his

five-year tenure with Abiomed. But under the specific terms of

the compensation arrangement entered into by the parties, Suzuki

was not entitled to the second equity incentive until regulatory

approval actually occurred. Given the factual mosaic that existed

at the time of Suzuki's discharge, this milestone had not been

achieved. Indeed, it was uncertain at that time whether it would

be achieved — and, in fact, it was only achieved after fifteen

months of substantial additional work. Consequently, there is no

principled way in which we can say that Abiomed deprived Suzuki of

"compensation clearly connected to work already performed."

Cochran,

; see King v. Mannesmann Tally Corp., 847

- 26 - F.2d 907, 908 (1st Cir. 1988) (per curiam) (finding commissions

contingent on events that "did not occur until months after the

appellant's discharge and subsequent to a long period of

negotiation . . . insufficiently reflective" of past work). And

because the second equity incentive does not constitute

"compensation earned but not yet paid, we need not determine

whether his termination occurred in bad faith" or without good

cause.9 Harrison,

.

To cinch the matter, Suzuki attempted to add a provision

to the 2010 offer letter that would have entitled him to an equity

incentive if a relevant milestone was achieved within six months

after the termination of his employment, but Abiomed rejected such

an amendment. And even if Suzuki's proposed amendment had been

adopted, he still would not have been entitled to the second equity

award since approval of the Impella devices occurred well over six

months after his discharge. At any rate, both Suzuki's e-mail to

a former colleague in May of 2015 and his deposition testimony

9 Because we do not explore the motives behind the termination of Suzuki's employment, we have no need to address his contention that courts are forbidden from assessing post-termination events when inquiring into whether an employer dismissed an employee in bad faith or without good cause. For the sake of completeness, though, we add that to the extent Suzuki contends that courts may not examine post-termination events when analyzing whether compensation is sufficiently reflective of past work, he is mistaken. See King, 847 F.2d at 908 (exploring post-termination events to evaluate whether plaintiff was deprived of compensation based on past services).

- 27 - reveal his crystal-clear understanding that he was not entitled to

the second equity incentive unless and until he secured regulatory

approval. Viewed against the backdrop of these undisputed facts,

we think that Suzuki's invocation of the implied covenant for the

forbidden purpose of supplying contract "terms that the parties

were free to negotiate, but did not" cannot stand. Chokel v.

Genzyme Corp.,

(Mass. 2007); see Maddaloni,

(noting that, under the Fortune/Gram doctrine,

a plaintiff is not "entitled to benefits which he neither

contemplated nor included in his contract").

To say more would be supererogatory. On this record, no

reasonable factfinder could conclude that when Abiomed fired

Suzuki, it deprived him of compensation that he had already earned

by virtue of his past services. The undisputed facts establish

that Suzuki understood he would be entitled to the 20,000 shares

only upon final regulatory approval of the Impella devices — a

milestone that was far from assured at the time of his ouster and

that was not reached until fifteen months later (after much

additional work). Suzuki cannot recover under the Fortune/Gram

doctrine, and the district court did not err in entering summary

judgment in Abiomed's favor.10

10 We add a coda. Suzuki also suggests that he may be entitled to proportional damages (that is, a proportionate share of the second equity incentive) commensurate with the value of his efforts toward securing regulatory approval. Yet he has identified nothing

- 28 - III. CONCLUSION

We need go no further. For the reasons elucidated above,

the judgment of the district court is

Affirmed.

in the parties' contractual arrangement that would support such an award. Nor has he cited any persuasive Massachusetts authority that would entitle him to damages notwithstanding his failure to adduce evidence sufficient to withstand summary judgment under the Fortune/Gram line of cases. We therefore reject this aspirational suggestion out of hand.

- 29 -