United States Court of Appeals For the First Circuit

No. 22-1417

BRIAN KLAUBER,

Plaintiff, Appellant,

v.

VMWARE, INC.,

Defendant, Appellee.

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

[Hon. F. Dennis Saylor, IV, U.S. District Judge]

Before

Kayatta, Selya, and Howard, Circuit Judges.

David P. Angueira, with whom Swartz & Swartz, P.C. was on brief, for appellant. David L. Schenberg, with whom Mark H. Burak, Laurielle M. Howe, and Ogletree, Deakins, Nash, Smoak & Stewart, P.C. were on brief, for appellee.

August 11, 2023 SELYA, Circuit Judge. Plaintiff-appellant Brian Klauber

strives to persuade us that the district court erred in entering

summary judgment in favor of his quondam employer, defendant-

appellee VMware, Inc. (the Company), with respect to his contention

that he was wrongfully deprived of hundreds of thousands of dollars

in commissions allegedly due to him both under the Massachusetts

Wage Act, see

, and under the common

law. After first upholding the district court's application of

Federal Rule of Evidence 408 and thus confirming the dimensions of

the summary judgment record, we turn to the meat of the district

court's thoughtful rescript and affirm its entry of summary

judgment on all of the plaintiff's claims.

I

We briefly rehearse the relevant facts and travel of the

case.

A

The Company is a computer software firm. The plaintiff

worked there — in different sales roles — for about six years

between July of 2012 and September of 2019. While employed at the

Company, the plaintiff's compensation comprised a combination of

a base salary plus commissions.

The commission arrangement lies at the epicenter of this

appeal. The plaintiff's commissions were governed by two

integrated agreements. The first was an individualized commission

- 2 - plan, which set the plaintiff's standard commission rates,

compensation targets, and product quotas. The second was a set of

terms and conditions applicable to the plaintiff's commission

plan.1 The Company periodically revised and reissued these

agreements and — each time a revised agreement emerged — the

plaintiff signed it (thereby confirming his agreement to the

revised terms and conditions).

The Company's fiscal year (FY) spanned the period from

February of the preceding year through January of the listed year.

The terms and conditions relevant to the contested commissions

were the versions in effect during the second half of FY 2018 and

the second half of FY 2019. Except where otherwise noted, the

relevant language remained essentially the same across the

different versions.

The terms and conditions stipulated that a commission

was only considered "earned" once three requirements had been

satisfied. We summarize them succinctly.

The starting point, of course, is that the employee must

have "[a]ccepted his or her [c]ompensation [p]lan." Next, the

employee must have had "eligible [q]uota [a]chievement." Finally,

a "Plan Reconciliation, including but not limited to the review of

any transactions deemed to be Exception Transactions, splits, and

1 The record reveals that these terms and conditions applied to commission payments for all eligible employees.

- 3 - other Adjustments, [must have] been completed by [the Company],

analyzing all commissionable events, draws, [c]ommissions paid,

and factors affecting Variable Compensation." Plan Reconciliation

was, in a nutshell, the process through which the Company

determined whether and how much to adjust commissions for Exception

Transactions — Company parlance for atypical transactions.

The first two requirements are not in issue here, so we

train the lens of our inquiry on the third requirement. As already

noted, the terms and conditions specifically authorized

adjustments to commissions for Exception Transactions. The terms

and conditions included examples of transactions that would be

deemed Exceptions: the top ten customer deals within a quarter2;

transactions in which the value exceeded the employee's assigned

quota; certain transactions valued over $2,000,000; transactions

with "atypical management involvement," including transactions

with limited involvement by the employee; and transactions "that

contain[ed] non-standard terms or [were] atypical or extraordinary

for some other reason."

If a transaction was deemed to be an Exception

Transaction by the Company, according to these descriptive

specifications, the head of worldwide sales (in FY 2018) or the

This example appears only in the FY 2018 terms and 2

conditions; it does not appear in the FY 2019 terms and conditions. For present purposes, that omission does not have any particular significance.

- 4 - head of the sales compensation committee (in FY 2019) could, in

his or her "sole discretion," authorize adjustments to any

commissions claimed with respect to that transaction. The

commission schedule set by an employee's individualized commission

plan served as the baseline, and any adjustments were determined

on a case-by-case basis.

In FY 2019, the terms and conditions were augmented to

add a "Large Deal Review Policy." The added policy stated that a

review similar to that employed for Exception Transactions would

be conducted on deals valued at $10,000,000 or more. Any resulting

commission adjustments would require approval by the sales

compensation committee.

B

Against this backdrop, we turn to the transactions that

undergird the plaintiff's claims.

1. In FY 2018, the Company closed a deal with DXC

Technology Corporation (DXC). That deal was one of the most

munificent that the Company had ever consummated: it was worth

over $130,000,000. The plaintiff's role involved educating the

customer and answering technical questions about the Company's

products. He claims that he should have been paid a commission of

$32,124.99.

The head of worldwide sales designated the deal an

Exception Transaction because it was one of the top ten deals in

- 5 - the quarter, there was heavy senior-management involvement and

limited involvement of many lesser employees (including the

plaintiff), and the deal was structured in an unorthodox fashion.

The Company then determined, through Plan Reconciliation, that the

plaintiff had not been a core member of the sales team and that

his limited involvement necessitated a severe commission

adjustment. As a result, his commission was reduced to zero.

2. In FY 2019, the Company closed a deal with Barclays

Bank (Barclays) worth between $40,000,000 and $50,000,000. With

respect to this deal, the plaintiff was the Company's "landed

representative" in North America (which meant that he was

responsible for helping to manage relationships and sell products

to the financial services industry in North America). The deal

was designated by the Company as both a "Large Deal" and an

Exception Transaction because, among other things, it exceeded

certain employees' assigned quotas. At the end of the line —

through Plan Reconciliation — the Company determined that the

plaintiff's commission should be adjusted downward based on his

limited role in the deal: he had joined the team as landed

representative just three months before the transaction closed

(after most major negotiations had transpired), and he had not

been present with the core deal team in London. Accordingly, his

commission — which the plaintiff asserts should have been in the

amount of $429,153.57 — was scaled back to $208,721.58.

- 6 - C

The plaintiff was displeased with these commission

adjustments, but he did not complete the Company's internal dispute

resolution process with respect to either of them. Instead, he

resigned in September of 2019 and — the following month — he

brought suit against the Company in a Massachusetts state court.

He asserted claims for nonpayment of wages under the Wage Act,

breach of contract, unjust enrichment, and quantum meruit. Citing

the parties' diverse citizenship and the amount in controversy,

the Company removed the action to the United States District Court

for the District of Massachusetts. See

(a),

1441(a).

After discovery closed, the Company moved for summary

judgment across the board. The plaintiff opposed the motion. At

that point, the Company moved to strike certain portions of the

plaintiff's opposition, and the plaintiff objected to that motion.

The district court granted in part and denied in part

the Company's motion to strike. See Klauber v. VMware, Inc.,

, 37 (D. Mass. 2022). Thereafter, the court granted

the motion for summary judgment. See

The court held that the

terms and conditions ancillary to the plaintiff's commission plan

were enforceable under Massachusetts law. See

. It then

held that the commissions that the plaintiff claimed he was owed

were not "wages" within the meaning of the Wage Act and, thus, not

- 7 - subject to the Act's protections. See

With respect to the

breach of contract claim, the court held that the terms and

conditions allowed the commission adjustments. See

And,

finally, the court determined that the plaintiff had no claim for

relief under theories of unjust enrichment and/or quantum meruit

because there was a valid contract between the parties. See

.

This timely appeal followed.

II

In this venue, the plaintiff challenges the district

court's partial grant of the Company's motion to strike. He also

challenges the district court's entry of summary judgment on his

various claims. We address these challenges separately.

A

We start with the plaintiff's evidentiary challenge. He

submits that the district court erred in granting in part the

Company's motion to strike certain portions of his response to its

motion for summary judgment. We think not.

We "review the district court's evidentiary rulings made

as part of its decision on summary judgment for abuse of

discretion." Hoffman v. Applicators Sales & Serv., Inc.,

(1st Cir. 2006). "'Abuse of discretion' is a phrase which

sounds worse than it really is." Aggarwal v. Ponce Sch. of Med.,

(1st Cir. 1984) (quoting In re Josephson, 218

- 8 - F.2d 174, 182 (1st Cir. 1954)). In the ordinary course, we "will

not find an abuse of discretion unless perscrutation of the record

provides strong evidence that the trial judge indulged in a serious

lapse in judgment." Hoffman,

(quoting Texaco P.R.,

Inc. v. Dep't of Consumer Affs.,

(1st Cir. 1995)).

When adjudicating a motion for summary judgment, a

district court customarily may consider only evidence that would

be admissible at trial. See Garside v. Osco Drug, Inc.,

(1st Cir. 1990); see also Fed. R. Civ. P. 56(c)(2). But

this general rule, like most general rules, admits of exceptions.

One exception, relevant here, is that the district court may

consider an "affidavit or declaration" as long as it is "made on

personal knowledge, set[s] out facts that would be admissible in

evidence, and show[s] that the affiant or declarant is competent

to testify on the matters stated." Fed. R. Civ. P. 56(c)(4).

With this plinth in place, we turn to Federal Rule of

Evidence 408. In pertinent part, the rule bars the admission of

certain types of settlement-related evidence "either to prove or

disprove the validity . . . of a disputed claim." Fed. R. Evid.

408(a); see, e.g., Rodriguez-Garcia v. Mun. of Caguas,

(1st Cir. 2007); McInnis v. A.M.F., Inc.,

, 246-

48 (1st Cir. 1985). This includes evidence of "furnishing,

promising, or offering — or accepting, promising to accept, or

- 9 - offering to accept — a valuable consideration in compromising or

attempting to compromise the claim." Fed. R. Evid. 408(a)(1).

As a general matter, then, the purpose of Rule 408 is

"to promote a public policy favoring the compromise and settlement

of claims" by shielding negotiations from use in later litigation.

McInnis,

; see Catullo v. Metzner,

(1st Cir. 1987). The drafters of the rule had in mind

that settlement evidence "is of questionable relevance on the issue

of liability . . . , since settlement may well reflect a desire

for peaceful dispute resolution, rather than the litigants'

perceptions of the strength or weakness of their relative

positions." McInnis,

. Even so, Rule 408 does not

preclude the introduction of evidence relating to settlements and

compromises for other purposes, such as showing notice or "proving

a witness's bias or prejudice." Fed. R. Evid. 408(b); see

Rodriguez-Garcia,

.

In response to the Company's motion for summary judgment

in this case, the plaintiff filed — under seal — a memorandum in

opposition, a statement of undisputed material facts (UMF

Statement), and several related documents. The Company moved to

strike certain portions of the memorandum, one paragraph of the

UMF Statement, one paragraph of the plaintiff's supporting

affidavit, one paragraph of an affidavit executed by the

plaintiff's counsel, and an exhibit annexed to counsel's

- 10 - affidavit. Each of these challenged items referred back to an

earlier suit (the Sanderson suit), in which the plaintiff and three

co-workers sued the Company for alleged violations of the Wage Act

arising in connection with their commission plans. The Sanderson

suit was settled, pursuant to a confidential agreement, in 2016.

The district court denied the motion to strike in part

and granted it in part. See Klauber, 599 F. Supp. 3d at 37. The

court denied the motion as to counsel's affidavit and the attached

exhibit, which consisted of a redacted version of the 2016

settlement agreement in the Sanderson suit. See id. at 44. The

court concluded that the plaintiff had introduced the "evidence of

the settlement agreement to show his state of mind when signing

off on [the Company's] terms, and not to prove or disprove the

validity of his current claims." Id. at 43. And "[w]hatever the

relevance of his then-existing mental state," that purpose did not

offend Rule 408. Id.

In all other respects, the district court granted the

motion to strike. See id. at 45. The challenged paragraphs in

the UMF Statement and the plaintiff's affidavit were sisters under

the skin. The former read: "After extensive discovery in the

matter of Sanderson . . . , the matter was resolved as a result of

[p]laintiff's arguments that [the Company's] conduct of improperly

reducing its employees' commission payments was not enforceable

under Massachusetts law." Id. The latter read: "After extensive

- 11 - discovery in that matter, the case was resolved as a result of our

claims that [the Company's] employment contracts with us were not

enforceable due to the unilateral and arbitrary provisions

allowing [the Company] to change our commissions after the fact."

Id. at 44-45. The memorandum added that "[m]ultiple provisions in

[the terms and conditions] are illegal under Massachusetts law; a

fact that [the Company] became well aware of over the course of

[its] previous litigation with [the plaintiff]." Id. at 45.

The district court struck the challenged paragraphs in

the UMF Statement and the plaintiff's affidavit as well as two

paragraphs in the memorandum. In the court's judgment, these

materials impermissibly offered information about the settlement

agreement in the Sanderson suit in an attempt to prove the validity

of the plaintiff's current claims. See id. These materials, the

court concluded, were "offered to demonstrate that [the Company]

settled the prior litigation because the terms and conditions

related to the payment of commissions were unenforceable under

Massachusetts law," which was essentially the same claim that the

plaintiff was pressing in the current litigation. Id.

In reaching this conclusion and in partially granting

the motion to strike, the district court acted within the compass

of its discretion. The court painstakingly distinguished between

the evidence that the plaintiff offered to show that he believed

the terms and conditions were unenforceable (which it admitted)

- 12 - and the evidence that the plaintiff offered to show that the

Company settled the Sanderson suit because the terms and conditions

were unenforceable under Massachusetts law (which it struck). The

two bodies of evidence served different purposes (one permissible

and one impermissible), and the court appropriately differentiated

between them on this basis. Drawing this line of demarcation and

acting upon it was plainly not an abuse of discretion.

The plaintiff demurs. He contends that the purpose of

the excluded evidence, like that of the admitted evidence, was to

show his "intent and state of mind when signing" the terms and

conditions pertinent to the commission plans at issue here (by

which he means his understanding that those terms and conditions

were unenforceable under Massachusetts law). This evidence, he

says, was also admissible to prove the Company's knowledge that he

believed the terms and conditions to be unenforceable and to refute

the Company's position that he knew the terms and conditions were

enforceable.

These contentions take the plaintiff in circles. The

excluded materials explicitly asserted that the settlement had

been reached because the commission arrangement was unenforceable

— the precise issue that this case presents. To state, for

example, that the Sanderson suit was "resolved as a result of our

claims that" the terms and conditions were "not enforceable due to

the unilateral and arbitrary provisions" is a blunt attempt to use

- 13 - a prior settlement to prove the validity of an eerily similar claim

currently before the court — a blunt attempt that Rule 408(a)

forbids. Those statements, as the district court astutely

observed, impermissibly "refer[] to the settlement agreement to

establish that the current claim at issue has already been decided

— that is, that [the Company's] contracts are unenforceable under

Massachusetts law." Id.

Finally, even if we were to discern any semblance of

error with respect to the district court's ruling on the motion to

strike (which we do not), any such error would be harmless. See

Dusel v. Factory Mut. Ins. Co.,

(1st Cir. 2022)

("We may affirm in spite of an erroneous evidentiary ruling if the

error was harmless, meaning that it is highly probable that the

error did not affect the outcome of the case." (internal quotation

marks omitted) (quoting Tersigni v. Wyeth,

(1st

Cir. 2016))); see also Fed. R. Civ. P. 61. The plaintiff claims

that he offered the excluded evidence to show his subjective intent

when agreeing to the terms and conditions — that is, that he

believed the terms and conditions to be unenforceable. But

evidence of the plaintiff's subjective intent when entering into

the commission plans is immaterial under Massachusetts law. See

Greene v. Ablon,

(1st Cir. 2015) (applying

Massachusetts law); Okerman v. VA Software Corp., 871 N.E.2nd 1117,

1125 (Mass. App. Ct. 2007). Thus, any evidence of the plaintiff's

- 14 - subjective intent when accepting the terms and conditions would

not have moved the needle at all.

In variations on this theme, the plaintiff argues that

he wanted to introduce the evidence for two other reasons: to

show the Company's knowledge of his belief that the terms and

conditions were unenforceable and to show his lack of knowledge of

the Company's position that they were enforceable. These arguments

were not advanced below and, thus, are foreclosed on appeal. See

Teamsters Union, Local No. 59 v. Superline Transp. Co.,

(1st Cir. 1992) ("[A]bsent the most extraordinary

circumstances, legal theories not raised squarely in the lower

court cannot be broached for the first time on appeal.").

That ends this aspect of the matter. We hold that the

district court did not abuse its discretion in granting in part

the Company's motion to strike portions of the plaintiff's

opposition to the Company's motion for summary judgment.

B

We turn next to the plaintiff's substantive claims. In

addressing those claims, we must keep in mind that this case is in

a federal court solely by virtue of diversity jurisdiction.

Consequently, state law supplies the substantive rules of

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

(1938);

Conformis, Inc. v. Aetna, Inc.,

(1st Cir. 2023).

The parties agree that the law of Massachusetts controls, and we

- 15 - accept that reasonable agreement. See Borden v. Paul Revere Life

Ins. Co.,

(1st Cir. 1991).

We review the entry of summary judgment de novo. See

Minturn v. Monrad,

(1st Cir. 2023). Summary

judgment is appropriate when the movant has shown "that there is

no genuine dispute as to any material fact" and that it is thus

"entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).

In conducting this tamisage, we construe the record in the light

most hospitable to the nonmoving party (here, the plaintiff) and

draw all reasonable inferences to his behoof. See Minturn,

. When engaging in this mode of review, "[w]e are not

tied to the district court's rationale but, rather, may affirm the

judgment on any ground made manifest by the record."

1

We first consider the Wage Act claims. The Act "imposes

liability on employers who fail to pay wages earned by their

employees." Ellicott v. Am. Cap. Energy, Inc.,

(1st Cir. 2018); see

. There is no

doubt that the plaintiff was an employee of the Company. The

principal question before us is whether the commissions that he

insists were owed qualify as protected wages.

Commissions may qualify as wages, sheltered by the Wage

Act, in certain circumstances. See Parker v. EnerNOC, Inc.,

, 333 (Mass. 2020). To separate wheat from chaff, we

- 16 - must start with the premise that commissions are "contingent

compensation." Mui v. Mass. Port Auth.,

(Mass.

2018). Thus, the prophylaxis of the Wage Act applies to

commissions only when "two conditions [have been] met: (1) the

amount of the commission 'has been definitely determined'; and (2)

the commission 'has become due and payable.'"3 Parker, 139 N.E.3d

at 333 (quoting

).

A commission is "definitely determined" when it is

"'arithmetically determinable,' taking into account the

'applicable formulas and deductions' and the 'total from which

deductions would be taken.'" Okerman, 871 N.E.2d at 1124 (quoting

Wiedmann v. Bradford Grp.,

(Mass. 2005),

abrogated on other grounds by

, as

amended by

). But even if a commission is

susceptible to definite determination, it is not "due and payable"

until all "dependent contingencies have been met." Ellicott,

.

3 The Massachusetts Supreme Judicial Court has left open the possibility of commissions constituting "wages" under the Wage Act despite not having been "definitely determined" and "due and payable," at least in the context of a claim based on retaliation. See Parker, 139 N.E.3d at 334-35; Mass. Gen. Laws ch. 149, § 148A. There is no claim for retaliation here. The claims in this case are simply for nonpayment of wages. See

. Thus, we tailor our analysis to the claims before us, bringing into play the longstanding rule that commissions must be "definitely determined" and "due and payable" to constitute "wages" under the Act. See Ellicott,

.

- 17 - To be sure, the default rule is that a commission

"becomes due and payable when the employee closes the sale, even

if there is a delay in actual payment on the sale."

at 170

(quoting McAleer v. Prudential Ins. Co. of Am.,

(D. Mass. 2013)). This default rule, though, is not a

fixed part of the "due and payable" calculus: an employer and an

employee may agree to different terms, thus modifying or

eliminating the default rule. Here, the commission plan agreed to

by the parties specifically set out other contingencies. In such

instances, "courts apply the terms of the plan."

(quoting

McAleer,

).

We turn, then, to the particular terms and conditions

that the parties agreed would determine the extent of any

commissions. Those terms and conditions provided — as material

here — that commissions were only "earned" once three additional

contingencies had been met: first, the plaintiff must have

accepted the commission plan; second, the plaintiff must have had

"eligible [q]uota [a]chievement"; and third, Plan Reconciliation,

"including but not limited to the review of any transactions deemed

to be Exception Transactions," must have been completed.

The plaintiff admits that he accepted and agreed to the

commission plan. He further admits that the plan's terms and

conditions spelled out the additional contingencies through which

his commissions would become "earned" and, thus, "due and payable,"

- 18 - including, for Exception Transactions, the completion of Plan

Reconciliation. Nor does he gainsay that the DXC and Barclays

deals were properly characterized as Exception Transactions.

Notwithstanding these admissions, the plaintiff insists

that his commissions were "due and payable" and — as such — under

the protective carapace of the Wage Act. In taking this stance,

the plaintiff posits that a portion of the terms and conditions

(specifically, the third contingency) is unenforceable under the

Wage Act because Plan Reconciliation, in practice, gives the

Company "unfettered authority to withhold pay" through commission

adjustments. The Company counters that all of the terms and

conditions, including the Plan-Reconciliation contingency, are

enforceable under the Wage Act; that the plaintiff's claimed

commissions could not be deemed "earned" unless and until they

were upheld at the Plan-Reconciliation stage; and that the only

commissions on the DXC and Barclays deals that were "due and

payable" were those approved through Plan Reconciliation.

We find the Company's arguments more persuasive. Under

Massachusetts law, employers and employees may agree to

contingencies that must be satisfied before commission payments

become due and payable such that they qualify as protected earnings

for Wage Act purposes. See

The terms and conditions to which

the plaintiff and the Company mutually agreed provided that — in

the event a transaction was determined to be an Exception

- 19 - Transaction — commissions would not be "earned" unless and until

Plan Reconciliation had taken place. In furtherance of this

provision, those terms and conditions spelled out that the office

of Plan Reconciliation was to determine whether there would be

adjustments to the employee's commission calculation. The terms

and conditions imposed no limits on the extent of those

adjustments. And under the plain terms of the parties' agreement,

Plan Reconciliation was a contingency which had to be met before

a commission on an Exception Transaction was due and payable.

Although the plaintiff originally agreed to this

arrangement, he now attacks it. He says that the Plan-

Reconciliation contingency should be disregarded because it gives

the Company unfettered discretion to adjust commissions on any

transaction without limit. He attempts to draw support from the

terms and conditions, which defined the Plan-Reconciliation

contingency as "including but not limited to the review of any

transactions deemed to be Exception Transactions."

The plaintiff's attack misses the mark. There is not a

shred of evidence that the Company ever used Plan Reconciliation

to adjust commissions on any transactions other than those that

were deemed to be Exception Transactions. Rather, the evidence

shows that adjustments were made to commissions through Plan

Reconciliation only after particular transactions had been

classified as Exception Transactions. Exception Transactions were

- 20 - thus in a class of their own, defined by the terms and conditions

to encompass only atypical deals. Membership in that class was

determined by whether a given transaction included some unusual

element or elements, examples of which were the top ten customer

deals within a quarter, deals in which the value exceeded the

employee's assigned quota, and deals with "atypical management

involvement." It is reasonable that different criteria would

affect an employee's entitlement to commissions with respect to

atypical transactions (where applying standard commission rates

could easily lead to windfalls). And both the DXC and Barclays

transactions were — as the plaintiff concedes — appropriately

deemed Exception Transactions based on the criteria limned in the

terms and conditions.

We add, moreover, that the plaintiff received a salary

as well as standard commissions on typical transactions. Only

after the DXC and Barclays transactions were deemed Exception

Transactions did the Company's right to adjust the commission

structure come into play (to account for the atypical nature of

the transactions). So viewed, the fact that there was discretion

in the calculation of commission adjustments for that limited class

of transactions does not allow the Company the free rein over

commissions that the plaintiff ascribes to it. And at any rate,

nothing in Massachusetts law prevents commission arrangements from

incorporating subjective criteria. See Vonachen v. Comput.

- 21 - Assocs. Int'l,

(D. Mass. 2007)

(enforcing provision giving employer "explicit discretion" to

adjust commissions for large transactions); see also Daly v. T-

Mobile USA, Inc.,

(Mass. App. Ct. 2018)

(unpublished opinion) (concluding that provision in employment

manual allowing employer to adjust commission formula before

commissions became "due and payable" was enforceable).

In an effort to pump the brakes on this reasoning, the

plaintiff relies on the decision in McAleer v. Prudential Insurance

Co. of America,

. But the plaintiff reads

McAleer through rose-colored glasses and — read through untinted

lenses — McAleer does not gain him any traction.

The McAleer court acknowledged that a commission plan

could incorporate discretion as to "factual determinations,

calculations, and eligibility" regarding commissions.

.

There, however, the employer argued that the terms of the

applicable plan granted it even more discretion than those terms

actually allowed. See

The court did not hold — as the

plaintiff's cherry-picked excerpts tend to indicate — that

contingencies incorporating broad discretion will not be enforced

according to their tenor.

The short of it is that the Company's commission plan

did not violate the Wage Act. Under that plan, the plaintiff's

commissions on Exception Transactions were not earned (and, thus,

- 22 - not due and payable) until the Company had completed Plan

Reconciliation. Consequently — as the district court ruled —

"[a]ny potential commissions on those deals, prior to the

occurrence of a [P]lan [R]econciliation, would . . . not qualify

as wages under the statute." Klauber, 599 F. Supp. 3d at 47-48

(emphasis in original).

2

The plaintiff does not go quietly into this dystopian

night. He raises (or at least suggests) a plethora of other

arguments aimed at resuscitating his Wage Act claims. Without

exception, these arguments are unpersuasive, undeveloped, or in

some instances, both unpersuasive and undeveloped. We reject them

out of hand, pausing only to offer three brief comments.

As a start, the plaintiff invokes yet another provision

of the Wage Act: the "special contract" provision. Under this

provision, "[n]o person shall by a special contract . . . exempt

himself from" the Wage Act.

. The

plaintiff asserts that this proviso renders the terms and

conditions ancillary to his commission plan unenforceable because

requiring commissions to go through Plan Reconciliation gives the

Company the ability to "withhold commission payments after an

employee has completed work on the deal."

We do not agree. As we have said, commissions only

qualify as wages under the Wage Act once they are "due and

- 23 - payable." Commissions are not necessarily due and payable simply

because "an employee has completed work on the deal." After all,

a commission plan may incorporate other contingencies that must be

met before a commission is due and payable — and if those

contingencies are not met, the commissions do not become wages

protected by the Wage Act. See Ellicott,

,

(construing Massachusetts law); Parker, 139 N.E.3d at 333.

In all events, Massachusetts courts have been

consentient in holding that the special contract provision only

bars agreements to exempt wages from the prophylaxis of the Wage

Act. See Weems v. Citigroup Inc.,

, 93 n.9 (Mass.

2009) ("Because of our conclusion that the [compensation] at issue

here do[es] not constitute wages under the [A]ct, the special

contract provision does not apply."); see also Camara v. Att'y

Gen.,

, 1121 (Mass. 2011) (explaining that special

contract provision prohibits employers from withholding payment of

"any earned wages" (emphasis omitted)). Thus, if compensation

does not qualify as wages under the Wage Act, the special contract

provision does not apply at all. So it is here.

Arguing for a different rule, the plaintiff relies on

the decision in Crocker v. Townsend Oil Co.,

(Mass.

2012). His reliance is mislaid. The Crocker court held that a

general release of claims included in a termination agreement would

violate the special contract provision, but that a retrospective

- 24 - release of Wage Act claims would be enforceable so long as it was

"voluntary and knowing" and included "express language that Wage

Act claims [we]re being released."

. Crocker has

no discernable bearing on the issues before us.

The plaintiff's other arguments fare no better because

all of them depend on the incorrect premise that the contingencies

in the terms and conditions ancillary to the plaintiff's commission

plan are unenforceable. For example, the plaintiff claims that

the Wage Act required his commissions to be paid promptly after he

met "all the required contingencies for commission payment by

completing the work assigned and meeting the sales quotas outlined

in [his] individual compensation plan." But the terms and

conditions explicitly delineate other contingencies, and courts

must enforce other valid contingencies to which the parties have

agreed. See Ellicott,

.

By the same token, there is no merit to the plaintiff's

claim that the district court erred in concluding that he had only

"limited involvement," Klauber, 599 F. Supp. 3d at 41-42, in the

DXC and Barclays transactions (in which he claims he played a "key

role"). Any factual dispute regarding his role, though, is

immaterial to his legal claim. The case might be different, say,

if the plaintiff had brought a claim under the implied covenant of

good faith and fair dealing that inheres in every contract and

alleged that the Company "violate[d] [his] reasonable

- 25 - expectations" while performing the Plan Reconciliation. Chokel v.

Genzyme Corp.,

(Mass. 2007). Here, however,

the plaintiff's only claim is that the potential commissions should

be considered wages owed. That claim fails on the basis that the

commission adjustments made by the Company were allowed under

Massachusetts law.

To say more about the plaintiff's Wage Act claims would

be to paint the lily. It is clear that the terms and conditions

agreed to by the parties set valid contingencies that had to be

met before a commission could be earned. Until those contingencies

were satisfied, any potential commissions did not become due and

payable and, thus, did not qualify as "wages" within the purview

of the Wage Act. The plaintiff's Wage Act claims therefore fail.

3

This brings us to the plaintiff's final assignments of

error: that the district court erred in granting summary judgment

on his claims for breach of contract, unjust enrichment, and

quantum meruit. These assignments of error are plainly without

merit.

To show a breach of contract, "the plaintiff must prove

that a valid, binding contract existed, the defendant breached the

terms of the contract, and the plaintiff sustained damages as a

result of the breach." Minturn,

(quoting Young v.

Wells Fargo Bank, N.A.,

(1st Cir. 2016)) (applying

- 26 - Massachusetts law). Here, the plaintiff's breach of contract claim

is nothing more than a reframing of his Wage Act claims. He argues

that the Company violated his individualized commission plan by

failing to honor the commission calculations required thereunder.

But the plaintiff has not even tried to explain why the commission

adjustments made by the Company violated the terms and conditions

that explicitly authorized commission adjustments for Exception

Transactions.

Stripped of rhetorical flourishes, the plaintiff's

argument in this respect relies entirely on the premise that the

terms and conditions ancillary to his commission plan are

unenforceable. And it is evident to us — as it was to the district

court, Klauber, 599 F. Supp. 3d at 48 — that the terms and

conditions were enforceable. See supra Part II(B)(1). The

plaintiff's alternative argument that he did not intend to be bound

by the terms and conditions is similarly unavailing. See Greene,

("[T]he formation of a valid contract under

Massachusetts law requires objective, not subjective, intent.");

see also supra Part II(A). It follows that summary judgment in

favor of the Company was appropriate on the plaintiff's breach of

contract claim.

The plaintiff's unjust enrichment and quantum meruit

claims also fail. Neither unjust enrichment nor quantum meruit is

an available avenue of recovery when a valid contract governs the

- 27 - parties' obligations. See Metro. Life Ins. Co. v. Cotter,

(Mass. 2013); Bos. Med. Ctr. Corp. v. Sec'y of

Exec. Off. of Health & Hum. Servs.,

, 1132 (Mass.

2012); see also Klauber, 599 F. Supp. 3d at 48-49. That is the

case here.

III

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

the judgment of the district court is

Affirmed.

- 28 -