Acharya v. Microsoft Corp.
354 P.3d 908
Wash. Ct. App.2015Background
- Bella Acharya, long-time Microsoft employee, accepted an international assignment and signed an MGR (Microsoft Global Resources GmbH) employment contract executed in London that contained a Swiss choice-of-law clause and a forum selection clause requiring disputes be litigated in Swiss courts.
- During her London assignment Acharya alleged gender-based hostile conduct and a retaliatory, adverse performance review by a Belgium-based supervisor (van Duüren); ERIT investigators in Redmond reviewed and found no Microsoft policy violation.
- Acharya returned to King County, applied for Microsoft jobs there, was not rehired, and sued Microsoft in King County under the Washington Law Against Discrimination (WLAD) and related negligence and retaliation theories, alleging discriminatory acts occurred in Washington and that Microsoft (not just MGR) was her employer.
- Microsoft moved to dismiss based on (1) the forum selection clause (and related choice-of-law clause) and (2) forum non conveniens, arguing Swiss forum and law govern; the trial court denied the motion and the court of appeals granted discretionary review.
- The court of appeals treated Acharya as the nonmoving party (accepting the inference Microsoft was her employer for purposes of the motion), considered whether the forum clause should be enforced (and whether Atlantic Marine should control), and evaluated forum non conveniens factors.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Atlantic Marine’s forum-selection rule should be adopted to require enforcement of the clause absent extraordinary public-interest reasons | Acharya argued the clause cannot be enforced here because of the unequal bargaining position and because enforcement would deprive her ability to vindicate WLAD rights | Microsoft argued Atlantic Marine controls and the clause must be enforced, preempting private-interest considerations | Court declined to adopt Atlantic Marine on these facts, noting employer–employee imbalance and public-policy concerns |
| Whether forum-selection and choice-of-law clauses are enforceable when they would preclude pursuing WLAD remedies | Acharya argued enforcement would deprive her of nonwaivable Washington discrimination rights and thus contravene public policy | Microsoft argued parties can foresee inconvenience and that European forum enforcement is reasonable | Court held enforcement would be unreasonable because it would effectively bar WLAD claims and violate Washington public policy |
| Whether dismissal on forum non conveniens grounds is required (is Switzerland an adequate and more convenient forum?) | Acharya argued Switzerland is inadequate or practically inaccessible (e.g., inability to retain counsel on contingency, expense, witness convenience in King County) | Microsoft argued Switzerland is an adequate alternative, with some relevant witnesses and that consistent contract application favors Swiss forum | Court found Switzerland adequate but private and public interest factors (witnesses, access to proof, local interest, WLAD law) favored Washington; denied dismissal |
| Whether Microsoft (rather than MGR) may be sued and invoke the contract’s forum clause | Acharya argued Microsoft was her employer and thus not bound by MGR’s clause; alternatively she argued integrated enterprise and inability to enforce clause against her | Microsoft argued MGR’s contract terms govern and Microsoft could invoke clause | For motion-to-dismiss purposes court assumed Microsoft was employer and thus could invoke clause, but still refused to enforce it on public-policy and forum-convenience grounds |
Key Cases Cited
- Atlantic Marine Constr. Co. v. U.S. Dist. Court, 134 S. Ct. 568 (U.S. 2013) (forum-selection clauses preempt private-interest forum non conveniens factors; enforce except for extraordinary public-interest reasons)
- Dix v. ICT Grp., Inc., 160 Wn.2d 826 (Wash. 2007) (Washington adopts federal test and asks whether enforcement of forum-selection clause is unreasonable)
- Myers v. Boeing Co., 115 Wn.2d 123 (Wash. 1990) (forum non conveniens factors and balancing of private/public interests)
- Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (U.S. 1947) (classic private and public interest factors for forum non conveniens analysis)