• June 25, 2018

Update (July 25, 2018): No. (And so, today, Minnesota Litigator is one for two on predictions.)

Original post (June 22, 2018): Richard Messina and his lawyers at Halunen Law have been wrestling with Mr. Messina’s former employer, Yosemite, since 2014. Defendant Yosemite successfully sought appeal of the denial of its motion to compel arbitration, but then lost that appeal in 2016. (Yosemite was deemed to have waived its right to arbitrate by fighting in court for more than eight months before asserting that right.)

Defendant sought to appeal again after it lost its summary judgment motion in 2017. The Court of Appeals found that it had no jurisdiction over that appeal and dismissed it.

Now the case, finally, is set to be trial ready as of July 30. Isn’t Yosemite Home Décor finally ready to tap out? Or is Yosemite really going to go to the mat?

Boxing Boxers

George Bellows, Dempsey v. Firpo, 1924

We ask because it does not seem the case has gone all that well for Yosemite over the past four years and, from where we’re sitting, Yosemite’s position does not seem strong.

Mr. Messina negotiated a job with Yosemite in 2012. In the negotiations, Yosemite first proposed the job as “terminable at will” by either party in writing. Mr. Messina rejected this proposal. He said he would require an initial contract with “a specific timeline guaranteed.” Yosemite then sent Mr. Messina a revised proposal that only differed from the first proposal by changing the at-will portion to a two-year term.

After that, Messina accepted Yosemite’s job offer, which he understood to have had a two-year term.

Yosemite fired him in less than one year. Messina sued.

Yosemite’s defense seems to be that, two days after accepting the job offer, Messina signed an “Employee Handbook Acknowledgement,” which provided in part that that employment could “be terminated, with or without cause, and with or without notice, at any time, at the option of either [Yosemite] or [Messina].”

Are we the only ones who think that someone who negotiated and accepted a specific employment agreement with a two-year term cannot be deemed to have accepted “terminable at will employment” on the same day by virtue of his having acknowledged receipt of an employee handbook?

As we enjoy predicting, we will predict that Yosemite will settle this case rather than go to trial.

Settlement before trial is an easy wager in most cases (since well over 95% of cases settle before trial). It is a riskier bet in this case given Yosemite’s huge investment in fighting Messina’s claim to date. One gets the sense that Yosemite does not like Mr. Messina a lot. On the other hand, if our prediction about settlement turns out to be wrong, we will go a step further and predict Yosemite will lose at trial. The question is whether decision-makers at Yosemite agree with or fully appreciate that risk. If so, it is sure to negotiate a settlement rather than going through the expense and risk of trial.


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