1st Circuit

Where a defendant employer was awarded summary judgment under the Massachusetts Wage Act, that judgment should be affirmed because the commissions claimed by the plaintiff do not qualify as protected wages, as any potential commissions did not become due and payable until valid contingencies set forth in the terms and conditions agreed to by the parties were satisfied.

“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 Mass. Gen. Laws ch. 149, §148, 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. …

“The commission arrangement lies at the epicenter of this appeal. …

“… 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 quarter; transactions in which the value exceeded the employee’s...

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