Marr v. West Corporation
310 Neb. 21
| Neb. | 2021Background
- Kenneth Marr worked at West from 1991, became senior VP of technical operations, and in 2009 signed an Employment Agreement promising severance (1 year base salary + projected bonus) if he voluntarily terminated for "Good Reason."
- In Sept. 2015 Marr received a Restricted Stock Award Agreement entitling vesting/dividends on a "Qualifying CIC Termination" (resignation for Good Reason within 2 years after a change in control); both agreements defined "Good Reason" to include a material reduction in duties or an adverse material change in reporting.
- West underwent a change in control in Oct. 2017; by April 2018 Marr was reassigned to report to a junior finance VP (Erik Carlson), removed from integrations and assigned to divestitures, and testified his duties and reporting were materially and adversely changed.
- Marr applied for and accepted a CTO job at FNTS in May 2018, emailed West on May 21 asserting Good Reason and seeking a cure, resigned effective June 21, 2018, and sued when West refused the contract compensation and stock treatment.
- A jury awarded Marr $400,540.45. The district court denied West's motions for JNOV and for a new trial; West appealed and the Nebraska Supreme Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Marr proved "Good Reason" under the Employment Agreement (material reduction in duties/adverse reporting change) | Marr: reassignment off integrations, assignment to divestitures, reporting to a lower-ranking, out-of-Omaha manager materially reduced duties and altered reporting | West: testimony showed divestitures are similar work, opportunities not reduced, and reporting change was not adverse | Jury reasonably could find material reduction and adverse reporting; JNOV properly denied |
| Whether Marr qualified under the Stock Agreement after the Oct. 2017 change in control | Marr: CIC occurred and post-CIC reporting/duties changed as required by the Stock Agreement | West: jury could not reasonably find the Stock Agreement triggers were met | CIC undisputed; jury could reasonably find adverse reporting change post-CIC, so Stock Agreement claim could go to jury |
| Whether Marr's subjective motivation (pursuing FNTS) defeats his Good Reason claim | Marr: motive irrelevant or he would have stayed if cure offered | West: Marr resigned to get the FNTS job and obtain severance — pretextual notice | Credibility is for the jury; Marr's testimony that he wanted to stay if cured had to be accepted for JNOV purposes, so JNOV was not warranted |
| Whether Marr gave adequate notice under the Employment Agreement (30-day detail and cure period) | Marr: May 21 email identified material reduction and reporting change and sought cure | West: email was a bare-bones notice, insufficient as a matter of law | The email provided sufficient notice for the jury to find compliance; JNOV denied |
| Whether Marr complied with Stock Agreement notice requirements (written notice within 90 days of knowledge) | Marr: May 21 email provided notice of events listed in Stock Agreement; knowledge began when reporting to Carlson in April 2018 | West: no written Stock Agreement notice and untimely | Jury could reasonably find Marr had knowledge only when reporting to Carlson and that his email constituted notice; JNOV properly denied |
| Whether evidentiary rulings warranted a new trial (excluded FNTS docs; admitted execs' residences; admitted Carlson's age) | Marr: excluded documents were cumulative; admitted testimony was relevant to reporting change | West: exclusions/prejudicial comments and improper admissions unfairly biased the jury | Any error was not prejudicial: similar evidence was admitted without objection or the relevance threshold was low; no abuse of discretion in denying new trial |
Key Cases Cited
- Valley Boys v. American Family Ins. Co., 306 Neb. 928 (de novo review of JNOV; moving party admits opposing evidence)
- Martensen v. Rejda Bros., 283 Neb. 279 (trial court discretion on new trial reviewed for abuse)
- Steinhausen v. HomeServices of Neb., 289 Neb. 927 (exclusion of evidence not reversible unless it unfairly prejudices substantial rights; cumulative-evidence rule)
- Koehler v. Farmers Alliance Mut. Ins. Co., 252 Neb. 712 (testimony admitted without objection can cure similar objections)
- Lindsay Internat. Sales & Serv. v. Wegener, 301 Neb. 1 (low threshold for relevancy)
- State v. Lavalleur, 289 Neb. 102 (probative value need only be "something more than nothing")
- Richardson v. Children’s Hosp., 280 Neb. 396 (trial court discretion in relevance determinations)