KEITH S. GIBBY, :

:

Plaintiff :

:

v. : Civil Action No. DKC-96-2860

:

INTERNATIONAL BUSINESS :

MACHINES CORPORATION, :

:

Defendant :

Plaintiff, through undersigned counsel, hereby submits this Memorandum in Opposition to Defendant's Memorandum in Support of its Motion for Judgment on the Pleadings.

I. FACTS

Keith Gibby was an IBM employee and manager for approximately ten years through 1994. (Am. Complaint at ¶2). IBM has in place a "Suggestion Plan" that allows employees to be able to earn from $50.00 to $150,000.00 for ideas they submitted under the plan -- the value of which "is determined...during a set period of time after implementation." (Am. Complaint at ¶ 3, Exh. A. §1.3). The plan establishes a set criteria for submittal of ideas which Mr. Gibby followed. (Am. Complaint at ¶ 8-10, 14-15, 17, 18, 20).

Plaintiff was an IBM Manager in 1989-90 and also a non-manager suggestion evaluator and suggestion plan presenter from 1984-93 and as a result had access to several other documents including the Manager's Manual and Evaluator's Guide to Suggestions submitted under the Suggestion Plan. Each of these documents reinforced Plaintiff's understanding that IBM would pay money to Plaintiff for valuable suggestions. (Am. Comp. ¶ 6 & 7). Further, Plaintiff submitted fourteen other suggestions over the years to IBM and was paid $90,237.00 in awards for these suggestions (Am. Complaint ¶ 7).

The language quoted by the Defendant regarding its contention that the Suggestion Plan is entirely discretionary with IBM to award or not award any monies to an employee is totally ambiguous based upon the totality of the circumstances when all of the above documents are considered. In fact, there is a great deal of language in the Suggestion Plan document as well as the Manager's Manual and the Evaluator's Guide (Exhibits A through C attached to the complaint) that strongly suggests to a reasonable person that IBM must pay money as an award to someone who makes a suggestion under the Plan. There might be discretion in the amount of the award to award a reasonable sum based upon the economic benefit to IBM for the suggestion but there is no discretion in making such an award.

Some of the pertinent language of these three documents will be discussed below as well as a discussion about the meaning of the language.

I. Suggestion Plan

A. Text of Plan

§1.0 - Your Ideas Have Value

"Since it was established in 1928, IBM's Suggestion Plan has been good for both the company and the employees who submitted useful ideas. For example, from 1975 to 1984, employees' suggestions have saved the company over $300 million and earned nearly $60 million in awards for IBMers..."

§1.3 Award from $50 to $150,000

If all eligible conditions are met and your suggestion is adopted for implementation, it can earn you a cash award from $50 to $150,000. The actual amount is determined from a calculation of tangible savings or intangible value resulting from our suggestion during a set period of time after implementation.

§1.4 How Awards Are Calculated

Because of the large variety of suggestions received, these rules cannot cover every conceivable situation. The decision of the company shall be in its sole discretion and final, binding, and conclusive in all matters pertaining to award calculations, including but not limited to the amount and calculations of the award and the time of payment."

§1.8 What Subjects To Avoid

"The basic intent of the Suggestion Plan is to award ideas that cause action resulting in savings or intangible value to IBM. To receive an award all eligibility requirements must be met." (emphasis added)

§1.9 What Happens To Your Suggestion

"If all eligibility criterion have been met and the Suggestion is to be implemented, an award is calculated based upon tangible savings or intangible value to IBM."

B. Discussion

When all of this language is read as a whole, a reasonable person must believe, as did the Plaintiff, that if an employee provides an idea to IBM that saves IBM money, they will receive an award. IBM's Chairman and Chief Executive Officer in §1.0 clearly leads a reasonable person to such a conclusion by stating that over $60 million in awards have been awarded. Further, §1.3 does not state that the award ranges from zero dollars to $150,000 but from $50 to $150,000. Nowhere does this section lead one to believe that one may get nothing for submitting a cost saving idea to IBM; to the contrary, this section strongly suggests that if an idea is presented to IBM that saves them money, then a cash award will be paid. Additionally, §1.4 only refers to IBM having discretion in determining the amount of the award and how it is calculated, not whether an award will be given at all if an idea saves IBM money. §1.8 says the intent of the plan is to award ideas that cause savings to IBM not that IBM may award ideas. Finally, §1.9 clearly states if all eligibility criteria have been met an award is calculated.

II. IBM Manager's Manual

A. Text of Manual

§02-24 - (pages 1 and 2)

A. Purpose

"The IBM Suggestion Plan provides a way of rewarding employees for suggestions which are implemented."

B. Management Responsibilities

Management should: ...

"7. Grant appropriate recognition to employees whose ideas are adopted."

E. Subject Eligibility

"The basic intent of the Suggestion Plan is to award ideas that cause action resulting in savings or intangible value to IBM."

B. Discussion

Clearly, all of this language suggests to a reasonable person that IBM will award money to an individual who submits an idea that saves IBM money.

III. Evaluator's Guide - IBM Suggestion Plan

A. Text of Guide

1. Preface (p.1)

"A vital program since 1928, the Plan provides cash awards to employees for ideas of value, ideas that work."

2. §1.3 Recommending implementation

"A tangible savings award is granted...when cash savings or cost avoidance results from implementation of the specific solution made in a suggestion..."

B. Discussion

Once again, this language leads the reasonable person to believe that an award shall be granted if an idea or suggestion is provided to IBM that saves them money.

The proof that Mr. Gibby followed the criteria is implicit from his averment that his four groups of ideas were actually implemented by IBM, for savings of several million dollars. (Am. Complaint at 10-11, 15-16, 20). Despite the Suggestion Plan's promise that value "is determined...after implementation [assessing IBM's savings]" (Exh. B. at §1.3) (emphasis added), and the plan's clear minimum and maximum award parameters of $50.00 to $150,000.00, and the statement of intent being to award ideas, (Exh. A at p. 1), IBM did not pay Mr. Gibby what he was due for his creative and valuable ideas. (Am. Complaint at ¶ 12, 16, 20). Moreover, because the Suggestion Plan was made available to Mr. Gibby and known and relied upon by Mr. Gibby to his detriment, IBM failed to abide by the Plan's implied duty of care to pay him, and denied his suggestions falsely and in bad faith. (Am. Complaint at ¶ 25-30).

II. THE LAW

A. Standards for a Judgment on the Pleadings

In assessing a Rule 12 (c) Motion for Judgment on the Pleadings, Courts must review the facts contained in the pleadings and their attachments, and do so in a light most favorable to the non-moving party. Fed. R. Civ. P. 12 (c); See Nat. Metropolitan Bank v. United States, 323 U.S. 454 (1945) (factual allegations in the opposing party's pleading are taken as true for purposes of the motion only). The standard for this assessment is virtually the same as that used in resolving a Rule 56 Motion for Summary Judgment: To determine whether there are no remaining disputes of material fact, and if not, whether a party is entitled to Judgment as a mater of law. Celotex v. Liberty Lobby, 477 U.S. 317, 327 (1986). Here, Plaintiff contends that whether or not he and the Defendant entered a contract (and any consequent damages) is a material fact in dispute and is only appropriate for resolution by jury. Likewise, whether he provided valuable ideas or suggestions which have caused the Defendant IBM to be unjustly enriched is a question for the jury. Finally, the defendant's misrepresentations under the alleged contract were tortious and damaging, is the entire dispute in this case, which is also inappropriate for resolution at this stage. The pleadings clearly adequately state a claim for unjust enrichment, quantum meruit breach of contract and the tort of negligent misrepresentation.

III. PLAINTIFF HAS STATED A CLAIM FOR UNJUST ENRICHMENT SINCE HE PROVIDED IBM WITH BENEFITS (MONEY MAKING IDEAS) WHICH IBM USED TO ITS BENEFIT UNDER CIRCUMSTANCES WHICH MAKE IT UNJUST TO RETAIN THE BENEFITS WITHOUT COMPENSATING THE PLAINTIFF.

IV. PLAINTIFF HAS STATED A CLAIM UNDER A QUANTUM MERUIT

THEORY BECAUSE HE HAS PLED AND CAN PROVE THAT HE RENDERED VALUABLE IDEAS TO IBM WHO ACCEPTED HIS IDEAS AND SAVED MILLIONS OF DOLLARS AND THAT PLAINTIFF REASONABLY EXPECTED TO BE COMPENSATED FOR HIS IDEAS

V. ALTERNATIVELY, IBM'S EMPLOYEE SUGGESTION PLAN IS AN OFFER FOR UNILATERAL CONTRACT WHICH THE EMPLOYEE ACCEPTED AND IBM BREACHED.

A. IBM'S EMPLOYEE SUGGESTION PLAN IS AN OFFER FOR A UNILATERAL CONTRACT.

B. IBM'S ATTEMPTED DISCLAIMER OF ITS UNILATERAL OFFER WAS INEFFECTUAL.

C. PLAINTIFF ACCEPTED THE TERMS AND CONDITIONS OF THE UNILATERAL CONTRACT BY MAKING SEVERAL SUGGESTIONS WHICH MADE IBM MILLIONS OF DOLLARS

D. IBM BREACHED THE COMPLETED CONTRACT BY ABUSING DISCRETION WHEN IT REFUSED TO PAY PLAINTIFF A REASONABLE SUM FOR HIS SEVERAL MILLION DOLLAR SUGGESTIONS.

VI. THE PLAINTIFF PROPERLY STATES A CLAIM FOR NEGLIGENT MISREPRESENTATION.

III. PLAINTIFF HAS STATED A CLAIM FOR UNJUST ENRICHMENT SINCE HE PROVIDED IBM WITH BENEFITS (MONEY MAKING IDEAS) WHICH IBM USED TO ITS BENEFIT UNDER CIRCUMSTANCES WHICH MAKE IT UNJUST TO RETAIN THE BENEFITS WITHOUT COMPENSATING THE PLAINTIFF.

Plaintiff's Count I in his Amended Complaint states a common law claim for unjust enrichment. He provided IBM with four sets of collective suggestions and IBM took them and made and saved money by using these suggestions. IBM forcefully argues that Plaintiff has no contract rights under its "Suggestion Plan" to any monetary or other relief. The decision, IBM notes, is purely within its own unfettered discretion as to whether to pay an employee for any suggestion, and if so, how much. Under this scenario an employee, a layman in terms of contract law expertise, finds himself denuded of any contractual rights or remedies. Assuming arguendo that the Defendant is correct, that there are no contract remedies, Plaintiff still does make out a viable claim of unjust enrichment.

A plaintiff will state a claim of unjust enrichment by pleading the following:

1) A benefit conferred upon the defendant by the plaintiff;

2) Appreciation or knowledge by the defendant of the benefit; and,

3) Acceptance by the defendant of the benefit under such circumstances as to make it inequitable for the defendant to retain the benefit without payment of its value. Yost v. Early, 87 Md.App. 364, 589 A.2d 1291, cert denied, 324 Md. 123 (1991); Accord Mass Transit Administration v. Granite Const. Co., 57 Md. App. 766, 471 A.2d 1121 (1984); Everhart v. Miller, 47 Md. App. 131, 422 A.2d 28 (1980).

Unjust enrichment is defined as the "unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience ... . Unjust enrichment of a person occurs when he has and retains money or benefits which in justice and equity belong to another." Everhart, 47 Md. App. at 136, 422 A.2d at 31 (quoting 66 Am. Jur. 2d Restitution and Implied Contracts, §3 (1973)). See also, Mass Transit, 57 Md. App., at 773-74, 471 A.2d at 1125 (The doctrine of unjust enrichment applies where the defendant, upon the circumstances of the case, is obliged by ties of natural justice and equity to refund the money. Accordingly, a person who has been unjustly enriched at the expense of another is required to make restitution to that party. Everhart, 47 Md. App. at 136, 422 A.2d at 31 (citing Restatement of Restitution §1 (1937)).

The Plaintiff has made out all of the elements of an unjust enrichment claim. First, he conferred a benefit upon the Defendant. Ideas have value and the Plaintiff provided IBM with four collective sets of stellar ideas according to his testimony. (Am. Complaint, infra). IBM, on the other hand, disputes the value of Plaintiff's ideas saying that they had already been submitted by others or "predated" among other issues. This is a dispute of fact which may not properly be decided on a Motion to Dismiss.

Second, Defendant had knowledge of the benefit conferred upon it by Plaintiff, his ideas. According to the undisputed facts, Plaintiff provided Defendant with those ideas in writing. (Am. Complaint).

Third, Defendant accepted and retained the ideas Plaintiff provided under such circumstances as to make it inequitable for the Defendant to retain and use these ideas without paying Plaintiff their value.

The Plaintiff, as a result of the foregoing, is entitled to "damages" or restitution under his unjust enrichment claim. In determining damages under an unjust enrichment claim, the measure of damages is the gain to the Defendant, not the loss by the Plaintiff. Mass Transit Admin., 57 Md. Ap. at 775, 471 A.2d at 1126 (The restitution claim ... is not aimed at compensating the plaintiff, but at forcing the defendant to disgorge benefits that would be unjust for him to keep.) The Defendant has benefited in the millions of dollars saved from the benefit of the ideas conferred upon it by Plaintiff.

Defendant is likely to propose several defenses to Plaintiff's unjust enrichment claim. It may argue that unjust enrichment will not lie because Plaintiff officiously thrust his ideas upon the Defendant. Officiousness is defined as the "interference in the affairs of others not justified by the circumstances under which this interference takes place. Everhart, 47 Md. App. at 137, 422 A.2d at 32. In this case, the Defendant did its level best to get its employees, including Plaintiff, to make suggestions by actively soliciting their ideas per its written Suggestion Plan. Additionally, it is clear from the facts of record that a jury could determine that what Plaintiff provided to the Defendant in terms of intellectual property (ideas) enriched the Defendant and that it would be inequitable for the Defendant to retain those benefits simply because there was a lack of a contractual understanding. Mass Transit Admin., 57 Md. App. at 780, 471 A.2d at 1128.

IBM may also argue that Plaintiff is restricted to "contract" remedies. This argument will fail as a matter of law because, under Defendant's theory as stated in its Summary Judgment papers, there is no enforceable contract. (Defendant's Brief pp. 5-9). A case heavily relied upon by Defendant, Calkins v. Boeing Company, 8 Wash. App. 347, 506 P.2d 329 (1973), holds that "No legal agreement existed between the parties [in a suggestion plan case] since the promise of the employer was illusory and payment for suggestion was absolutely within the discretion of the employer." Id. at 332.

Even if a contract did exist between the parties, a claim for unjust enrichment, as opposed to quantum meruit, will still be viable. The possible existence of an express contract is not fatal to a claim of unjust enrichment. Matarese v. Moore-McCormack Lines, 158 F.2d 631, (2d Cir. 1946). The same would not be true for a quantum meruit claim. Mass Transit, supra at 1126. Unjust enrichment and quantum meruit are two separate legal claims in Maryland. Bennett Heating & Air Conditioning, Inc. v. Nationsbank of Maryland, 103 Md. App. 749, n.4, 654 A.2d 949 (1995).

Out of jurisdiction authorities support Plaintiff's unjust enrichment claim. In 1935, for example, the court in Liggett & Myers Tobacco Co. v. Meyer, 101 Ind. App. 420, 194 N.E. 206 (1935), allowed a jury to award damages for the use of an unsolicited method of advertising cigarettes on billboards. Similarly, in Hamilton National Bank v. Belt, 210 F.2d 706 (D.C. Cir. 1953), the court allowed a recovery for the use of an unsolicited idea for a series of radio broadcasts. In both cases, the courts emphasized that the ideas were novel, new, and in concrete form.

A case of considerable interest is the famous case of Matarese v. Moore-McCormack Lines, 158 F.2d 631 (2d Cir. 1946). In Matarese, an inventor brought an action for "recovery of quantum meruit upon the theory of unjust enrichment," Id. at 632, for the unlawful appropriation of an invention for the loading and unloading of cargo. After the defendant discharged the inventor, he brought suit on the defendant's promise to pay him one-third the cost savings created by the invention. The court found that the doctrine of unjust enrichment was fully applicable to the case even though an express contract obviously existed. Thus, the possible existence of an express contract in the case at bar may not be fatal to a claim of unjust enrichment.

There is one salient feature about Liggett and Matarese (supra) that must be emphasized here. Specifically, the disclosing party expected compensation for the disclosure. In Liggett, the plaintiff had requested compensation when he disclosed the idea; in Hamilton and Matarese, the plaintiffs and defendants had expressly negotiated the contracts providing for the compensation. The point is that the courts protect an idea-bearing party who has a reasonable expectation for payment from defendants who take the idea and seek to manipulate the benefit of the bargain to their sole advantage for their unjust enrichment. Therefore, Plaintiff will be entitled to relief under his unjust enrichment claim if the facts are as he has alleged. He will need to prove that his ideas came first and were adopted by IBM and that IBM benefited in some substantial way from them. If he comes forward with such proof, his measure of damages will be the value of those ideas to the Defendant.

IV. PLAINTIFF HAS STATED A CLAIM UNDER A QUANTUM MERUIT THEORY BECAUSE HE HAS PLED AND CAN PROVE THAT HE RENDERED VALUABLE IDEAS TO IBM WHO ACCEPTED HIS IDEAS AND SAVED MILLIONS OF DOLLARS AND THAT PLAINTIFF REASONABLY EXPECTED TO BE COMPENSATED FOR HIS IDEAS

Plaintiff has stated a claim under a quantum meruit theory. He has alleged the following:

1) Valuable services were rendered to Defendant;

2) The services were rendered to the person sought to be charged, the Defendant;

3) The services were accepted by the Defendant, used and enjoyed by it; and,

4) The services were rendered under such circumstances that reasonably notified the Defendant that the Plaintiff, in performing such services, expected to be paid by Defendant. Waco Scaffold & Shoring Co. v. 425 Eye Street Assocs., 355 A.2d 780, 783 (D.C. App. 1976); see also Mass Transit Admin. v. Granitz Constr. Co., 57 Md. App. 766, 774, 471 A.2d 1121, 1125 (1984) and Skeens v. Miller, 331 Md. 331, 628 A.2d 185 (1993) (a quantum meruit action may be filed by an attorney upon termination of representation, regardless of whether the contingency set forth in an underlying retainer agreement had not occurred; the attorney could recover even if the underlying case was unsuccessful).

Plaintiff has alleged sufficient facts to make out each element in a quantum meruit action. First, valuable services were rendered in the form of an idea. Second, the services were rendered to IBM directly on its Suggestion Plan form. Third, IBM accepted the ideas of Plaintiff and implemented them and saved money as a result. And, fourth, the Plaintiff reasonably expected to be paid for the service/ideas; there is no evidence that what he offered was to be a gift to IBM. IBM induced its employees to come forward with ideas and hinted that they might be or would be paid.

In determining damages under the quantum meruit theory, the measure of recovery is the gain to the Defendant, not the loss by the Plaintiff. Mass Transit Admin., 57 Md. App. at 775, 471 A.2d at 1126. Here the amount of recovery is a share of the amount of savings gained by IBM as a result of Plaintiff's ideas. Since, as the Defendant has argued extensively, there is no contract, the Plaintiff's recovery is not capped by the $150,000.00 figure mentioned in the employee Suggestion Plan documents.

V. IBM'S EMPLOYEE SUGGESTION PLAN IS AN OFFER FOR UNILATERAL CONTRACT WHICH THE EMPLOYEE ACCEPTED AND IBM BREACHED.

A. IBM'S EMPLOYEE SUGGESTION PLAN IS AN OFFER FOR UNILATERAL CONTRACT.

Through its Suggestion Plan, IBM made an offer for unilateral contract to Keith Gibby. A unilateral contract is one where only one party makes a promise, and is the only party subject to a legal obligation. Calamari and Perillo, Contracts, § 1-11. The other party may accept an offer for unilateral contract in exchange for performance or forbearance according to the terms of the offer. Clarke v. Lacey, 213 Md. 482 132 A.2d 478 (1925); see Calamari and Perillo, Contracts. at § 2-10. The presence of unilateral contracts pervades employment law and has formed an exception to the employment-at-will doctrine, particularly in cases involving employee handbooks.

IBM suggests in its brief that Maryland law would follow several out-of-state cases from California and Washington (IBM Brief at 6-8). The suggestion is that no contract was formed. Plaintiff disagrees with this contention.

Insofar as unilateral contracts are concerned, Maryland law provides some relevant caselaw: written policy statements and other policy directives become contractual obligations when, with knowledge of their existence, employees rely on those statements containing palpable promises, and accordingly perform or forbear to their detriment. See Dahl v. Brunswick, 277 Md. 471 356 A.2d 221 (1976); MacGill v. Blue Cross of Maryland, Inc., 77 Md. App. 613, 551 A.2d 501 cert. denied, 315 Md. 692 556 A.2d 673 (1989); Staggs v. Blue Cross of Maryland, Inc., 61 Md. App. 381, 486 A.2d 798, cert. denied 303 Md. 295, 493 A.2d 349 (1985). Moreover, it is for a jury to determine if a contract was disclaimed. Elliot v. Board of Trustees of Montgomery County Comm. College, 104 Md. App. 93, 655 A.2d 46 (1995).

The primary Maryland case on this point is Dahl v. Brunswick, 277 Md. 471, 356 A.2d 221 (1976). In Dahl, 21 former employees of the Concorde Yacht Division of the Brunswick Corporation brought suit for severance pay after the division was sold to the Test Corporation, who agreed to continue Brunswick's policies with respect to Brunswick's severance and vacation pay policies. Dahl, 277 Md. at 475-77. Relying on a series of written policy statements issued by Brunswick, the plaintiffs brought suit against the Brunswick Corporation seeking severance pay and other forms of pay. Id. at 475-76. After dismissal at the trial court, the Maryland Court of Appeals held that policy directives constituted an offer of unilateral contract accepted by the employees by their continued employment. Id. at 477. While the employer conceded the issue of unilateral contract in Dahl, the case established that an employer's policies could constitute a contract under Maryland law, contrary to the State's at-will employment policy. See Dahl 277 Md. at 475, 356 A.2d 221 (stating that "[Defendant] concedes, as it should, that its policy directive constituted an offer for unilateral contract...")(emphasis added).

Staggs v. Blue Cross of Maryland, Inc., 61 Md. App. 381, 486 A.2d 798 cert. denied 303 Md. 295, 493 A.2d 349 (1985), extended Dahl's rule that an employer's policy directives may constitute a offer to form a unilateral contract to include employee handbooks. In Staggs, Maryland's Court of Special Appeals held that it "...saw no difference between provisions in a handbook or personnel policy statement affording post-termination, such as severance pay, and those affording pre-termination benefits [as was the case in Dahl]..." Staggs, 61 Md. App. 381, 486 A.2d 798. Accordingly, the Court held that provisions contained in the employer's "employee handbook," if properly expressed, may constitute a contractual undertaking enforceable by the employee. Id. at 303 Md. App. 392, 486 A.2d 803-04.

In MacGill v. Blue Cross of Maryland, Inc., 77 Md. App. 613, 551 A.2d 501 cert. denied, 315 Md. 692 556 A.2d 673 (1989), the Court of Special Appeals drew on dicta from Staggs which stated that general statements of policy in employee handbooks would not amount to an offer. MacGill limited the viability of employee handbooks as contractual obligations to only those situations where "implicit in the policies was a promise, made to each employee, of a specific and definite benefit⁽¹⁾ should the company's contractual undertaking be accepted." Id. at 618. Thus, to create contractual obligations under Maryland law,:

1) The statement must clearly call for a specific benefit to the employees, and is not a general statement of policy;

2) The benefit at issue is susceptible to objective application;

3) The statement is intentionally communicated by employer to its employees; and,

4) The employee was aware of the policy and properly accepted its offer.

Id. at 619-20, n.3. The purpose of allowing policy directives and statements like those found in Staggs and its progeny is to protect the legitimate expectations of the employees who justifiably rely on the policy statements. Castiglione v. Johns Hopkins Hosp., 69 Md. App. 325, 517 A.2d 786 (1987), 309 Md. 325, 523 A.2d 1013 (1987).

Here, IBM has not put forth a broad statement of policy, but rather establishes a specific plan for benefits: IBM's "...Plan provides a set of procedures for evaluating ideas and rewarding those who submitted them," (p.2) which has specific, objective procedures for application of benefits (Suggestion Plan at § 1.9). ("Who Is Eligible to Receive an Award"), §1.3. ("If all eligible conditions are met and your suggestion is adopted for implementation, it can earn you from $50 to $150,000), 1.7 ("What kinds of ideas can earn awards."). Moreover, the entire brochure was intentionally distributed to the Plaintiff (Am. Complaint at ¶ 4; Suggestion Plan at p. 1), and Mr. Gibby submitted his ideas as required by the Plan (Am. Complaint at 8, 14, 17). Further, Mr. Gibby had submitted fourteen prior suggestions over many years for which he was paid $90,237.00. This clearly established a course of dealing between the parties.

All of the language in the Suggestion Plan, the Manager's Manual and the Evaluator's Guide set forth above show that a reasonable person could only conclude that IBM will pay money for ideas that have value. The clear intent is seen in the initial introductory language of the Suggestion Plan setting forth that IBMers have earned over $60 million in awards over many years to the other statements that awards can be earned from $50 to $150,000 in the Suggestion Plan. Any reasonable person would interpret this language to mean that depending on the value of the suggestion to IBM, IBM will pay them a reasonable award within this range. IBM does not come out and say, "if you provide us an idea that saves us money, you may not get an award at all" but implies strongly that the award will be in a monetary range if the award does save them money. The fact that the word "can" is used does not imply the latter scenario at all but implies that you will get an award if you save IBM money; at best the phraseology used is patently ambiguous.

The language in the Manager's Manual and the Evaluator's Guide also strongly suggest that an employee will be granted an award if an idea is submitted that saves IBM money.

The totality of the above facts indicates that a unilateral contract exists because Defendant communicated the specific offer to Plaintiff, who accepted by submitting his ideas according to the established guidelines. Mr. Gibby's idea was submitted according to the Plan guidelines with the expectation that he would be compensated for their use, based upon the reasonable cost savings to IBM; yet, he never was paid. (Am. Complaint at ¶ 12, 16).

IBM's suggestion is that there was no contract between IBM and Gibby. (IBM Br. at 5-9). This does not have to be so. The IBM document is written in the form of an offer to pay cash awards for the use of an employee's idea. For example, the brochure states that "[t]he idea that crossed your mind--the impression you had--might just be worth something to IBM. And you." The statement is almost a classic formulation of an agreement to contract. Effectively the brochure is stating that "one hand washes the other" or, more crassly, "do something for me and I'll make it worth your while." To reiterate, the brochure must be read and understood as a reasonable person would have understood it. Sands v. Sands, 252 Md. 137, 249 A.2d 187 (1969) (test of true interpretation of offer and acceptance is not what party making it thought it meant but what a reasonable person in the position of the parties would have thought it meant). When read in that fashion, the IBM brochure can only be understood as being an offer of a unilateral contract.

Finally IBM cites to this Court the case of Stewart v. IBM, CV-94-052-H-RMH (D. Mont. July 24, 1995) (Exhibit B to Defendant's motion). It is interesting to note when the Montana court examined IBM's own suggestion plan, that it held the plan to be an enforceable contract. Id at 8-11. So has the Fourth Circuit in a similar case. The Fourth Circuit has held that a suggestion plan similar to IBM's was found to be a valid enforceable contract and that the submitter of the suggestion was entitled to an award under the plan. Raybestos-Manhattan Inc. v. Rowland, 460 F.2d 697,700 (4th Cir. 1972). Judge Field specifically stated in examining the issue of whether a suggestion plan constituted a contract:

"In our opinion, the suggestion system of the plaintiff was in itself a continuing offer to all of its employees. In this respect it was analogous to a prize competition. See Carlini v. United States Rubber Co., 8 Mich App. 501, 154 N.W. 2d 595 (1969). Accordingly when Rowland submitted his suggestion he accepted the offer of the plaintiff subject, of course, to all of the provisions of the suggestion system. The result was a valid and enforceable contract." (emphasis added) (other citations omitted)

Defendant cites the Stewart case to support its argument that it has unlimited discretion in granting an award. As will be set forth infra at pp. 24-29, said argument is without merit because said discretionary language must be deemed unenforceable by this court because IBM did not act in good faith. Further, Stewart is distinguishable in any event because the plaintiff in Stewart was paid certain sums for his idea by IBM but complained that he was not paid enough. This is clearly not the case here as Plaintiff was not paid any money whatsoever despite submitting four collective sets of ideas that saved IBM millions of dollars. Thus Plaintiff, in the instant case, is not complaining about the amount of the award but the fact IBM in bad faith chose to award him nothing despite his submission of numerous cost-saving ideas that saved IBM multi-millions of dollars.

B. IBM'S ATTEMPTED DISCLAIMER OF ITS UNILATERAL OFFER FOR UNILATERAL CONTRACT WAS INEFFECTUAL BECAUSE IT ACTED IN BAD FAITH

Maryland recognizes that employers may protect themselves from claims of contracts arising from employment polices and directives if they sufficiently disclaim contractual intent. Bagwell v. Peninsula Reg. Med. Ctr.. 106 Md. App. 470, 665 A.2d 297 (1995); Castiglione v. Johns Hopkins Hosp., 69 Md. App. 325, 517 A.2d 786 (1987), cert. denied, 309 Md. 325, 523 A.2d 1013 (1987). The cases are clear in stating that contractual intent must be "expressly disclaimed." Bagwell, 106 Md. App. 470, 493, 665 A.2d 297 (1995); Castiglione, 69 Md. App. 328-29, 340, 517 A.2d 786 (1987), 309 Md. 325, 523 A.2d 1013 (1987) (stating that language of disclaimer must be clear and conspicuous).

In Haselrig v. Public Storage, the Court of Special Appeals held that two attempted disclaimers of contractual privity in an employee handbook were not sufficient, as a matter of law, to disclaim contractual intent. 86 Md. App. 116, 128, 585 A.2d 294 (1991). The Court held that disclaimers must be "clear and unequivocal." Id., (emphasis added). The employer in Haselrig cited two "disclaimers" in its employee handbook in support of its argument that it had disclaimed contractual privity. Id. The disclaimers stated:

The relationship between you and PSI is predicated on an at will basis. That is to say, either the employee or the employer may terminate the relationship at any time.

It should be understood that employment and compensation can be terminated with or without cause and with or without notice at any time at the option of either the Company or the employee.

Id. at 120-21., 585 A.2d 294. Despite the attempted disclaimer language, which had been placed under the heading captioned "Employment Relationship", the Court held that privity was not disclaimed. Id. The Court stated that the efficacy of the disclaimer was a matter for the jury, not the court, to decide. Id. The Court reasoned:

If we determine that the language of the provisions is ambiguous--an ambiguity exists when the language in the provision is, to a reasonably prudent layman, susceptible of more than one meaning, (Truck Insurance Exchange v. Marks Rentals, Inc., 288 Md. 428, 433, 418 A.2d 1187 (1980)), or where the placement of the provisions in the handbook has that effect and/or is equivocal, then the issue of the appellant's justification in relying on the other provision is for the factfinder. When the issue is, as it is here, the justiciability of an employee's reliance on a handbook, we must consider both the placement of the provisions in the handbook and the placement of the provisions.

Id., 86 Md. App. at 128, 585 A.2d 294 (emphasis added). Bearing significantly on this point is the case of Osborn v. Boeing Airplane Co., 309 F.2d 99 (9th Cir. 1962). In Osborn, an employee submitted a suggestion pursuant to a plan which gave Boeing the right to determine how much to award the employee if the idea was used. Indeed, the plan seemed to give Boeing the right to determine whether the employee should be paid at all, even though Boeing was using the suggestion to its benefit. The court analyzed the plan as something like an adhesion contract, and strictly construed the plan's language against Boeing.⁽²⁾ Ultimately, the court held that the question of whether the plaintiff's particular suggestion was submitted gratuitously was for the jury. The Ninth Circuit found that despite Boeing's attempt at retaining total discretion "a possible interpretation of the language" implied that Boeing's discretion was not unfettered but was constrained by good faith. Id. at 102-03 (footnotes omitted).

Further support for Plaintiff's position is seen in several other cases. First, in Didley v. General Motors Corp., 837 F. Supp 535 (W.D.N.Y. 1993) the Court held that summary judgment was improper in a breach of contract action involving plaintiff's claim under a suggestion plan, despite the existence of an explicit "finality" provision giving General Motors unfettered discretion in determining the amount of an award, if any, under a suggestion plan. The Court stated there are several exceptions to the rule that finality provisions are enforceable.

These include:

if "(1) the decision was not made within the framework of the rules governing the suggestion plan,

(2) the suggestion committee acted fraudulently or in bad faith, or,

(3) the decision was based on gross mistake."

Id at 539 citing Sterling v. General Motors Corp., No. 419213, slip op. at 7-8 (Conn. Super. Ct. 1987), Carlini v. United States Rubber Co., 8 Mich. App. 501, 154 N.W. 2d 595,597 (1967),

Quate v. Hydra-Matic, 1990 WL 169109 (S.D.Ind. 1990).

Thus the Didley court allowed plaintiff's claims to go forward for breach of contract holding that the defendant's failure to follow its own rules of the suggestion plan fell within these exceptions. Additionally, the Didley court allowed plaintiff's claims for quantum meruit to go forward as well.⁽³⁾

Other state cases have also held a suggestion plan is enforceable even with a "finality" provision if the employer's discretion was exercised in bad faith when for example, the suggestion committee refuses to exercise its discretion and award the plaintiff money despite a useful idea. See Lone Star Steel Co. v. Scott, 759 S.W. 2d 144, 152 (Tex. App. 1988)- Court upheld multi million dollar verdict for plaintiff because suggestion committee refused to set an amount and exercise its discretion and thus acted in bad faith; Carlini v. United States Rubber Company, supra, at 598 - Court reversed grant of Motion for Summary Judgment regarding suggestion plan with finality provision because of a suggestion committee's failure to make a decision or the fact it may have made a decision based upon a gross mistake.

In the instant case, Plaintiff clearly has alleged in his complaint for breach of contract that IBM did not make its decision within the framework of the Plan by repeatedly denying requests for payments on his suggestions based upon its contentions that the suggestions were "predated," the suggestion involved subjects "periodically examined by management" or dealt with a "subject in the maturing process." Plaintiff has alleged that such contentions by IBM are patently false and that IBM did not follow the terms of its own Plan. (Am. Complaint at ¶ 12-13.) Further, in the Amended Complaint he has alleged IBM acted in bad faith. Accordingly, his claim must be allowed to go forward as these allegations are all factual disputes to be decided by a jury.

Maryland Courts follow this reasoning of implying good faith in contractual under takings and emphasize the importance of good faith in the bargaining process. In Elliot v. Board of Trustees of Montgomery County Comm. College, 104 Md. App. 93, 655 A.2d 46 (1995), the Court of Special Appeals held that "in cases where an employer has contracted to do something, that requires it to exercise its discretion, then it must exercise its discretion in good faith." Id. 104. Md. App. at 108, 655 A.2d 53. In other words, the Court held that despite an employer's assertion that they retain discretion in resolving contract language, this discretion is not unfettered, but is constrained by good faith. Id. See Hrehorovich v. Harbor Hosp. Center, Inc., 93 Md. App. 772, 796 614 A.2d 1021 (1992) (stating that although at-will employment situations, which by definition are not contracts, do not include aspects of good-faith, other contracts do).

Admittedly, the IBM documents suggest tepidly that the decision as to the amount and whether to pay compensation was discretionary with IBM. Yet the latter interpretation is clearly ambiguous and contrary to the parties prior course of dealing. This fact, however, is insufficient to win the day for IBM because here, in the context of the entire Suggestion Plan which is brimming with offers of money for ideas, any disclaimer to be enforceable as IBM wants it to be, must make clear that even excellent, "million dollar" ideas can be taken and implemented by IBM without payment, not just the paltry ideas. The disclaimer is clearly ambiguous on its face and cannot be enforced for this reason alone let alone IBM's bad faith in the transaction.

The real question at issue is whether a reasonable person reading the IBM literature would have so understood the literature as an offer to contract or whether the reasonable person would have felt that contractual liability would be disclaimed. More to the point, would a reasonable person have interpreted the brochure to mean that IBM reserved the right to withhold compensation for the very ideas it solicited even if the use of those ideas was enormously beneficial to IBM? Obviously, Plaintiff contends that a reasonable person would only believe that IBM must award money for a cost-saving idea.⁽⁴⁾

C. THE EMPLOYEE ACCEPTED THE TERMS AND CONDITIONS OF THE UNILATERAL CONTRACT BY MAKING SEVERAL SUGGESTIONS WHICH MADE IBM MILLIONS OF DOLLARS.

Assuming that there is an element of good faith implied into this Suggestion Plan, then IBM breached its contract with Mr. Gibby. See Hrehorovich v. Harbor Hosp. Center, Inc., 93 Md. App. 772, 796 614 A.2d 1021 (1992). Mr. Gibby reasonably accepted the offer to contract by submitting the four collective sets of ideas described in his complaint. Despite the retention of the discretion to make a reasonable award, the obligation of good faith prevented IBM from using that discretion as it did.

What is most important for the purposes of this Motion is that the result in cases such as Haselrig and Elliot depends on the court's determination as to how a reasonable person would have understood a plan's language. The same reasoning should apply here -- if the language of the brochure clearly disclaimed contractual intent, than Gibby might not have submitted an idea that saved IBM millions of dollars. But he did submit ideas and he did accept the offer. For purposes of the motion to dismiss, that fact is all that need be determined, for, having determined it, the motion to dismiss must fail.

Thus, this case is particularly inappropriate for resolution at the motion to dismiss stage. The language of the IBM Suggestion Plan is not at all clear and unambiguous in stating that, even if an idea is used and generates tremendous savings, IBM reserves the right to take the idea, implement it, and pay nothing at all to the submitter of the idea. IBM must prove that this is how a reasonable person would understand the document this way if it is to prevail. Clearly, this is a jury question.

D. IBM BREACHED THE COMPLETED CONTRACT BY ACTING IN BAD FAITH AND ABUSING DISCRETION WHEN IT REFUSED TO PAY PLAINTIFF EVEN A DOLLAR FOR HIS SEVERAL MILLION DOLLAR SUGGESTION.

According to IBM, it reserved the right to not make any award to a submitter of an idea, even though the idea is very profitably used by IBM. Nonetheless, good faith frequently operates as a limitation on the exercise of rights or discretion that a party may have under a contract. See Tymshare, Inc. v. Covell, 727 F.2d 1145, 1152 (D.C. Cir. 1984). In applying the obligation of good faith to any particular contract or set of circumstances, the question, therefore, is what conduct, though perhaps permitted by the literal terms of the contract, is nevertheless excluded by the obligation to act in good faith or not to act in bad faith.

Indeed, Maryland and other jurisdictions are in line with the viewpoint of the commentators, who find there is an implied obligation of good faith in all contracts. Accord Elliot, 104 Md. App. 93, 655 A.2d 46 (1995). This obligation requires that the parties will "refrain from doing anything which will destroy or injure the other party's right to receive the fruits of the contract". 17A C.J.S. "Contracts" §328 at 286 (1963). The implied duty of good faith has also been recognized in the Restatement of Contracts: "Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement". Restatement (Second) of Contracts §205 (1981).

The precise requirements of good faith are difficult to specify in advance. Frequently, "good faith" is defined by discussing what it is not, i.e., by giving examples of bad faith. Thus, the Restatement of Contracts discusses the concept as follows: The phrase "good faith" is used in a variety of contexts, and its meaning varies somewhat with the context. Id. §205 comment a. More specifically, the drafters of the Restatement have explained:

A complete catalogue of types of bad faith is impossible, but the following types are among those which have been recognized in judicial decisions: evasion of the spirit of the bargain, lack of diligence and slacking off, willful rendering of imperfect performance, abuse of a power to specify terms, and interference with or failure to cooperate in the other party's performance.

Id. §205, comment d (emphasis added).

As the foregoing quotation suggests, the essence of the implied obligation of good faith is the protection of the reasonable expectation of the parties, which includes a reasonable interpretation of the terms of the bargain.

What courts are doing here, whether calling the process "implication" of promises, or interpreting the requirements of "good faith"...is but a recognition that the parties occasionally have understandings or expectations that were so fundamental that they did not need to negotiate about those expectations. When the court "implies a promise" or holds that "good faith" requires a party not to violate those expectations, it is recognizing that sometimes silence says more than words, and it is understanding its duty to the spirit of the bargain is higher than its duty to the technicalities of the language.

Id. §570 (Kaufman Supp. ed. 1984) (emphasis added). As one author has noted, the obligation of good faith is especially important in cases where the realization of one party's expectations is dependent on the other party.

The good faith performance doctrine thus may be

used to protect a "weaker" party from a "stronger"

party. The relative strength of the party exercising discretion typically arises from an agreement of the parties to confer control of a contract term on that party. The dependent party then is left to the good faith of the party in control.

Burton, "Breach of Contract and the Common Law Duty to Perform in Good Faith", 94 Harv. L. Rev. 369, 380, 383-84 (1980) (footnotes omitted).

Professor Burton observed that applying the doctrine of good faith

requires a better understanding of the contractual

expectation interest....

Good faith limits the exercise of discretion in performance conferred on one party by the contract. When a discretion-exercising party may determine aspects of the contract, such as quantity, price, or time, it controls the other's anticipated benefits. Such a party may deprive the other of these anticipated benefits for a legitimate (or good faith) reason. The same act will be a breach of the contract if undertaken for an illegitimate (or bad faith) reason. Therefore, the traditional focus on the benefits due the promisee is inadequate.

Burton, supra, 94 Harv. L. Rev. at 372-73 (footnotes omitted).

In its brief, IBM emphasizes language from the IBM Suggestion Plan to the effect that if an idea is used, the decision as to the amount of the award "if any" lies in the sole discretion of IBM (IBM Br. at 10). IBM's language is not as clear to the reasonable reader as IBM would wish. (See supra, at pp. 2-6). The Plan leads the reader to believe that IBM would, in good faith, pay for the ideas it uses. For instance:

- "At the same time the company has been awarding millions of dollars to employees each year for their workable ideas." § 1.2, p.3.

- "The basic intent of the suggestion plan is to award ideas that cause action resulting in savings..."

- An employee's eligibility is determined by IBM management. If all eligibility criteria have been met and the suggestion is to be implemented, an award is calculated based on tangible savings or intangible value to IBM. §1.9.

The language is unclear simply because it does not say what IBM wishes it to say. To reiterate, IBM is saying that it was under no obligation to pay for its use of the submitted idea, no matter how beneficial the idea is to IBM. However, IBM does state a minimum payment for its plan awards -- that is -- $50. Suggestion Plan at p.2. The reservation of discretion could only be understood by a reasonable person to mean if an implemented idea had little or no utility or little measurable economic benefit, it may only merit a $50.00 award but if it saved IBM millions of dollars it would merit an award of $150,000.00, the maximum allowable under the Plan.

Any reasonable person reading the IBM form would not have concluded that if they submit an idea to IBM which created great profit, perhaps a million dollars, for the company, they would have no right to compensation from IBM. The documents must be read, as any person would read them, that is, with the notions of good faith in mind. No reasonable person reading this Plan, with good faith in mind would think the Plan allows IBM to simply appropriate a million dollar idea without any remuneration to the submitter. Mr. Gibby's expectation was that he would be compensated for the use of his ideas if they proved to be greatly beneficial to IBM. Someone in Gibby's position would have believed to have been promised by IBM with respect to an idea that was greatly profitable. The ideas Gibby submitted have saved IBM millions of dollars; it was an abuse of the discretion vested in it for IBM to have refused to compensate Gibby altogether. The obligation of good faith, when measured by the expectation of Gibby, requires that he be compensated for the use of the idea. If he is not, then he will be deprived of the benefit of the bargain he made with IBM.

A talisman of a unilateral contract is that only one party is bound. Here, Gibby was not bound to submit an idea. If he did, however, and IBM used it, then a contract between the parties arose. The obvious question here is what were the terms of payment for the use of the idea. Mr. Gibby submits that, while IBM did retain discretion as to the amount of payment as long as it was reasonable based upon the amount of savings received from the idea, IBM did not retain the discretion to not pay Gibby anything for an idea that saved IBM millions of dollars. That would be appropriation. The brochure cannot be reasonably read in that way. Thus, it was a breach of the obligation of good faith for IBM to have exercised its discretion in the way it did. Thus, under the plethora of case law cited earlier at pp. 24-27, IBM's discretionary language is unenforceable because of its failure to act in good faith.

VI. THE PLAINTIFF PROPERLY STATES A CLAIM FOR NEGLIGENT MISREPRESENTATION.

Contrary to the Defendant's assertion that the Plaintiff is improperly trying to repackage his contractual argument in tort, "...tort liability can be imposed upon contractual privity or its equivalent." Hrehorovich, 93 Md. App. at 772, 798 614 A.2d at 1034 (1992). A liability in tort may arise from the breach of a duty owed under the terms of the contract. Id. Because IBM did not properly disclaim its offer for unilateral contract, it may also be liable in tort for its representations.

In Maryland, the elements of a claim for negligent misrepresentation are: (1) the defendant, owing a duty of care to the Plaintiff, negligently asserts a false statement; (2) the defendant intends that the statement will be relied upon by the Plaintiff; (3) the defendant knows the statement will cause injury if Plaintiff relies on it; (4) the plaintiff justifiably relies upon the defendant's statement; and, (5) the plaintiff suffers damages as a result of the defendant's statement. Ward Dev. So. v. Ingrao, 63 Md. App. 645, 656, 493 A.2d 421 (1985). In assessing a rule 12 (c) Motion for Judgment on the Pleadings in a light most favorable to the Plaintiff, his pleadings adequately state a claim for this tort. Fed. R. Civ. P. 12 (c); See Nat. Metropolitan Bank v. United States, 323 U.S. 454 (1945) (Factual allegations in the opposing party's pleading are taken as true for purposes of the motion only).

In short, Mr. Gibby properly pled the first element of the tort of negligent misrepresentation. Mr. Gibby pled that Defendant represented to him that he could be paid for his ideas if the ideas met the necessary criteria. Am. Complaint at ¶ 26. Taking the facts alleged in the pleadings in a light most favorable to Mr. Gibby, he reasonably believed the Defendant would evaluate and pay him for use of his four collective sets of ideas, which he contends, IBM implemented. Complaint ¶ 10-20, 23. Defendant has not paid Plaintiff according to its established award methodology, despite his requests for payment. Complaint at ¶ 21, 22, 23.

Mr. Gibby sufficiently pled the second element of his tort claim, as is evident from both the pleadings and the Suggestion plan itself. That is, with the Plan's and its representations of payment, Defendant solicited suggestions from its employees and included a monetary enticement. Complaint at ¶ 4, 7, 22, 23. The Defendant specifically sought reliance on the offer of payment in order to elicit suggestions. Complaint at ¶ 4.

Mr. Gibby properly pled the third element of his tort claim. The first line of Defendant's Plan proves Defendant reasonably knew Mr. Gibby and employees would rely on the Suggestion Plan and submit ideas. The Plan's introductory sentence states as follows: "Since it was established in 1928, IBM's Suggestion Plan has been good for both the company and the employees who submitted useful ideas....I encourage you to look for better ways to run the business and to submit your ideas." Exh. A, second page. Indeed, since 1928, the Defendant has known that employees rely on the Plan's representation, and surrender their ideas according to the Plan's representations of payment. The complaint at paragraphs 4-17, 22-24, and 28 evinces the various ways Mr. Gibby relied on the Plan's representations.

Finally, the pleadings properly plead the fourth and fifth elements of the tort, and state that Mr. Gibby justifiably relied upon the Defendant's statement of payment (Complaint at 8, 14, 17, 29) and suffered damages as a result of the Defendant's statement. (12, 13, 16, 21, 23, 24, 29, 30). Indeed, Mr. Gibby was justified in his reliance and expectation of payment because the Defendant itself established a range of payments made -- from $50 to 150,000, creating in Mr. Gibby the expectation that he be awarded something. Further, his prior course of dealing led him to this conclusion as well. Exh. A, first page. Instead, Mr. Gibby was not paid⁽⁵⁾ but nonetheless surrendered his valuable ideas. Complaint at ¶ 12, 13, 16, 21. Taking all of the averments made by Mr. Gibby in a light most favorable to him makes it clear that, as a matter of law, he has sufficiently pled a claim for Negligent Misrepresentation.

At bottom, this case should be perceived as turning solely on the interpretation of the language of the brochure. Indeed, IBM's own brief reflects this fact. Virtually all of IBM's first argument is predicated on an explication of the language of the brochure. While matters of contract interpretation are sometimes said to be ones of law, the language here is so ambiguous that, as in Osborn v. Boeing Airplane Co., supra, it should be deemed to be a fact question whether Mr. Gibby's suggestions were gratuitous. In any event, if the contract cannot be said to clearly and unequivocally state that IBM retained the discretion to pay no compensation for its use of an idea which financially profited IBM greatly, then the motion to dismiss must be denied. This is especially true under the standards for judgment on this pleading, where all of the pleadings and inferences from the pleadings are to be construed most favorably to Mr. Gibby. Absent a clear expression of intent, the inference at this stage must be that a reasonable person would not have understood the brochure in the way IBM contends. Moreover, IBM should be held responsible for its overblown assertions of payment for ideas, which it has known would be reasonably be relied on by people like Mr. Gibby, an IBM Manager and long term Suggestion Plan evaluator and Suggestion Plan presenter, as a means to have them part with the ideas that IBM admits "have value." Further, IBM's discretionary language is ambiguous and cannot be enforced because of IBM's bad faith in failing to properly exercise that discretion. Finally, alternatively Plaintiff has stated a claim for unjust enrichment and quantum meruit.

For all of the above reasons, Plaintiff requests that the Motion be denied.

Respectfully submitted,

________________________

Bruce M. Bender

Van Grack, Axelson

& Williamowsky, P.C.

110 North Washington Street

Fifth Floor

Rockville, Maryland 20850

(301) 738-7660

________________________

Gary Howard Simpson

9505 Kingsley Avenue

Bethesda, Maryland 20814

(301) 493-0345

Attorneys for Plaintiff

I HEREBY CERTIFY that a copy of the foregoing was mailed first-class, postage prepaid, this 19th day of November, 1996 to:

Michael S. Horne, Esq.

Stephanos Bibas

Covington & Burling

1201 Pennsylvania Avenue, N.W.

P.O. Box 7566

Washington, D.C. 20044-7566

________________________

Gary Howard Simpson

1. ¹ "In Dahl the promised benefit was two weeks severance pay; in Staggs, it was the applicability of, and access to, otherwise unavailable pre-termination procedures." 77 Md. App. at 618, 551 A.2d at 503.

2. ² Some ten years after that decision, however, the state appellate court of Washington considered a similar claim against Boeing. Calkins v. Boeing Co., 8 Wash. App. 347, 506 P.2d 329 (1973). The language of the plan had been changed by Boeing during the interim; the state court found that "[t]he terms of the suggestion system now in use would not mislead an employee read their austere, distinct and literal wording." 506 P.2d at 331. The only change to the language of the plan was that Boeing reserved the right to determine the amount of any cash award if any to the submitter of a suggestion. In the instant case IBM did not use the language "if any." (See §1.3 and 1.4 of Plan).

3. ³ Although Plaintiff did not initially file a claim under quantum meruit, Plaintiff has filed an Amended Complaint with this pleading as well as a Motion for Leave of Court to allow the filing of the Amended Complaint to state causes of action under Quantum Meruit and Unjust Enrichment.

4. ⁴ Further support for this contention is the parties' own course of dealing over several years. As stated above, Plaintiff submitted fourteen suggestions for which he was paid money for his ideas $90,237.00. Where the terms of a contract are ambiguous or vague the court can look to the course of dealing between the parties to determine intent. Capitol Converting Equipment, Inc. v. LEP Transport, Inc., 750 F.Supp. 863, 865-66 (N.D. Ill. 1990).

5. ⁵ Despite the Defendant's intimations in its Memorandum, it is not relevant that Plaintiff asserts no proof that other employees were not paid. See Defendant's Memorandum In Support of its Motion to Dismiss, at 16. Furthermore, Plaintiff states through his Complaint that he was not paid "Despite numerous requests." Complaint at ¶ 12.