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22-P-912 Appeals Court

FTI, LLC, & another1 vs. ROBERT J. DUFFY & others.2

No. 22-P-912.

Suffolk. November 1, 2023. - July 31, 2024.

Present: Green, C.J., Blake, & Henry, JJ.

Consumer Protection Act, Businessman's claim, Unfair or 

deceptive act. Contract, Employment, Agreement not to 

compete, Choice of law clause, Performance and breach.

Employment, Constructive discharge. Unlawful Interference.

Practice, Civil, Consumer protection case, Directed 

verdict, Instructions to jury.

Civil action commenced in the Superior Court Department on 

October 17, 2016. 

The case was tried before Kenneth W. Salinger, J. 

Derek L. Shaffer, of the District of Columbia (Aliki Sofis

also present) for the defendants. 

John Siegal, of New York (Daniel M. Kavouras, of Ohio, & 

Melissa M. Carvalho, of New York, also present) for the 

plaintiffs.

1 FTI Consulting, Inc.

2 Stephen L. Coulombe, Elliot A. Fuhr, and Berkeley Research 

Group, LLC.
2

Stacie A. Kosinski & Alexander W. Read, for Public Justice 

Center, Inc., amicus curiae, submitted a brief.

HENRY, J. This matter arose when defendants Robert J. 

Duffy, Stephen L. Coulombe, and Elliot A. Fuhr resigned their 

positions with plaintiffs FTI, LLC, and FTI Consulting, Inc. 

(collectively, FTI), to work for defendant Berkeley Research 

Group, LLC (BRG), taking with them numerous FTI employees and 

clients.3 FTI brought suit alleging that the individual 

defendants were in violation of the noncompetition,

nonsolicitation, and confidentiality provisions of their 

employment agreements and that, acting in concert with BRG, all 

the defendants wrongfully used FTI's confidential information to 

poach FTI's employees and clients. Following a trial, a jury 

found the individual defendants liable for breach of contract4

and BRG liable for tortious interference with contractual 

relations. In addition, the trial judge found BRG liable for 

3 We refer to Duffy, Coulombe, and Fuhr, collectively, as 

the individual defendants and to Duffy, Coulombe, Fuhr, and BRG, 

collectively, as the defendants.

4 The jury found that all three individual defendants 

violated the noncompetition and nonsolicitation provisions of 

their employment agreements and that Duffy and Fuhr, but not 

Coulombe, violated the confidentiality provisions.
3

aiding and abetting breaches of fiduciary duties and for

violation of G. L. c. 93A.5 

On appeal, the defendants argue that (1) BRG cannot be 

liable for violation of G. L. c. 93A because the conduct giving 

rise to that claim did not occur primarily and substantially in 

Massachusetts6 and (2) the trial judge erred in allowing a 

directed verdict against them on part of their defense of 

constructive discharge and in instructing the jury on the 

remainder of that defense. We agree. Accordingly, we reverse 

so much of the judgment as holds BRG liable for violation of 

G. L. c. 93A. In all other respects, the judgment is vacated,

5 The jury awarded FTI $21,077,000 in compensatory damages

against all the defendants. The trial judge awarded $12 million 

in compensatory damages against BRG on FTI's aiding and abetting 

and c. 93A claims and $18 million in punitive damages against 

BRG on FTI's c. 93A claim. The trial judge then stated that his 

$12 million award (1) compensated FTI for injuries already 

compensated by the jury award and (2) was "subsumed" within the 

jury award. The defendants suggest that no judgment entered 

against them on the aiding and abetting claim, as no additional 

damages were awarded on that claim. That is incorrect where the 

trial judge's finding of liability against BRG on FTI's aiding 

and abetting claim is an alternative ground for so much of the 

judgment as holds BRG liable for $12 million. Cf. Millennium 

Equity Holdings, LLC v. Mahlowitz, 456 Mass. 627, 629 (2010)

(judgment could be affirmed on independent claims that involved 

identical damages).

6 BRG raised this defense at trial, arguing to the judge in 

closing that the evidence showed that the underlying conduct did 

not occur primarily and substantially in Massachusetts.
4

and the matter is remanded for further proceedings consistent 

with this opinion.7

1. Violation of G. L. c. 93A. a. Background. We begin 

by summarizing the background pertinent to FTI's claim against 

BRG for violation of G. L. c. 93A and then, after analysis of 

the c. 93A issue, summarize the background pertinent to whether 

the individual defendants were constructively discharged. Where 

BRG challenges the sufficiency of the evidence (specifically 

whether the conduct at issue occurred primarily and 

substantially in Massachusetts), and where the c. 93A claim was 

tried to the judge, ordinarily we would recite the trial judge's 

findings absent clear error. See Kuwaiti Danish Computer Co. v. 

Digital Equip. Corp., 438 Mass. 459, 470 (2003). Here, however, 

the parties agreed to waive findings of fact and conclusions of 

law,8 so we summarize the evidence in the light most favorable to 

the prevailing party, FTI. See K & K Dev., Inc. v. Andrews, 103 

Mass. App. Ct. 338, 344 (2023) (where parties waived detailed 

findings of fact, we apply standard of review applicable to 

7 We acknowledge the amicus brief submitted by Public 

Justice Center, Inc.

8 To the extent we refer to any factual findings of the 

trial judge, they were made in an order on posttrial motions. 

BRG does not challenge any factual findings as clearly 

erroneous.
5

judgments entered after jury verdicts); Motsis v. Ming's 

Supermkt., Inc., 96 Mass. App. Ct. 371, 379-380 (2019).

FTI and BRG are competing consulting firms. FTI is a 

Maryland company headquartered in Washington, D.C., and BRG is a

Delaware company headquartered in California, but they both 

perform work for clients across the country. Such work 

included, for example, financial analyses of other companies and 

assistance with mergers and acquisitions. As noted, the 

individual defendants all worked for FTI. Duffy and Coulombe 

resided in Massachusetts and were based out of FTI's Boston 

office. Fuhr resided in New York and was based out of FTI's New 

York City office, but he supervised employees in Massachusetts. 

Despite where they were based, the individual defendants

performed work for clients across the country and traveled so 

frequently that they "liv[ed] out of suitcases."

In or around December 2015, a BRG recruiter reached out to 

Duffy. Duffy informed Coulombe and Fuhr of his conversations 

with the recruiter, and the three met with BRG in Washington, 

D.C., in January 2016. During negotiations, the individual 

defendants had additional in-person meetings with BRG in New 

York City. During Duffy's negotiations with BRG, Duffy told BRG 

that acquiring him was like "buy[ing] a business" and that most 

of his clients would follow him. On or around April 7, 2016, 

the individual defendants signed employment agreements with BRG. 
6

Duffy's agreement, which he signed in New York City, included a 

provision for a "practice growth bonus" that he would earn by 

bringing employees to BRG. Duffy's, Coulombe's, and Fuhr's 

agreements with BRG provided that they would not use any 

confidential information or trade secrets of any other party 

other than BRG or breach a prior employment restriction. The 

next day, on April 8, 2016, the individual defendants

simultaneously resigned from FTI in a joint telephone call.

In hiring Duffy, BRG sought to acquire other employees and 

clients of FTI. The trial judge found that "Duffy actively 

participated in these efforts, and used FTI's confidential 

information to do so, while he was working for FTI out of its 

Boston office." The evidence supports a finding that Coulombe 

created, and Duffy maintained, a spreadsheet that memorialized 

the defendants' efforts. The spreadsheet was saved under the 

file name "Super Bowl"9 and listed confidential information about 

employees' past, current, and projected compensation; the 

employees' revenue generation; offers BRG made to the employees; 

and descriptions of whether the employees were "definite,"

"probable," or "likely" recruits. The judge found that, "[w]ith 

the help of the [individual defendants], [BRG] succeeded in 

9 As FTI's counsel argued in closing, the spreadsheet was 

saved under the file name "Super Bowl" because it was "the whole 

ball game on the issue of solicitation."
7

convincing [thirty-six] billing professionals -- including the 

three individual defendants -- to leave FTI and go to [BRG]."10 

One-half of the billing professionals who followed the 

individual defendants to BRG came from FTI's Boston office. 

Many clients, and their revenues, also left FTI. The trial 

judge found that, "[s]ince Duffy was the biggest rainmaker in 

[the] group, well over [one-]half of the client revenues that 

followed Duffy and his colleagues to [BRG] came from clients 

serviced by professionals who had been part of FTI's Boston 

office."

b. Discussion. The defendants' appeal requires us to 

determine whether "the actions and transactions constituting the 

alleged unfair method of competition or the unfair or deceptive 

act or practice occurred primarily and substantially within the 

commonwealth." G. L. c. 93A, § 11. If the actions and 

transactions did not occur primarily and substantially within 

Massachusetts, BRG cannot be liable for violation of G. L. 

c. 93A. On this issue, because "the burden of proof shall be 

upon the person claiming that such transactions and actions did 

not occur primarily and substantially within the commonwealth," 

10 The recruiter who led BRG's efforts was located 

"[p]redominately" in Washington, D.C., although he also held 

meetings in New York City and Chicago. There was evidence that 

another recruiter made at least one visit to Boston.
8

the burden of proof was on BRG. Id. Accord Resolute Mgt. Inc. 

v. Transatlantic Reinsurance Co., 87 Mass. App. Ct. 296, 300 

(2015). The analysis required under § 11 does not turn on any 

specific factors and instead involves determining "whether the 

center of gravity of the circumstances that g[a]ve rise to the 

claim" occurred here. Kuwaiti Danish Computer Co., 438 Mass. at

473. Whether BRG met its burden is "a question of law subject 

to plenary review." Id. at 470. We conclude that BRG met its

burden.

The trial judge focused on Duffy's connections to FTI's 

Boston office, mainly that (1) Duffy was based out of the Boston 

office when he was using FTI's confidential data to help BRG11

and (2) because of Duffy's connections to the Boston office, a 

significant concentration of the billing professionals and 

clients who followed the individual defendants to BRG were by 

happenstance also associated with the Boston office.12 While the 

11 As noted, while Duffy was based out of FTI's Boston 

office, he performed his job on the road and spent little time 

in Massachusetts. Additionally, BRG recruited Duffy in part 

because he had business connections in southern California, 

where BRG hoped to expand its business.

12 Of the thirty-three billing professionals who left FTI, 

sixteen came from the Boston office but seventeen came from 

outside Massachusetts, including a significant concentration 

from New York City. Approximately one hundred professionals 

remained in the Boston office. Further, those sixteen 

professionals who were based in Massachusetts, like Duffy, 

performed their work all over the country. To the extent FTI's 
9

trial judge's analysis accurately captures Duffy's connections 

to the Boston office, the question is where "the actions and 

transactions constituting the alleged unfair method of 

competition or the unfair or deceptive act or practice 

occurred." G. L. c. 93A, § 11. The proper focus in this claim 

against BRG, therefore, is on where the wrongful conduct

occurred. See Kuwaiti Danish Computer Co., 438 Mass. at 474 

(removing from consideration conduct that was not wrongful).

As FTI concedes, "[r]ecruiting is not in itself unfair or 

deceptive." Rather, BRG's wrongful conduct involved

(1) encouraging the individual defendants to collect FTI's 

confidential information and give it to BRG, including through 

the "Super Bowl" spreadsheet, and (2) using that confidential 

information in recruiting FTI's employees and clients.13 BRG, 

claimed damages included retention bonuses it paid to employees, 

the retention payments made by FTI occurred primarily outside 

Massachusetts.

13 On FTI's claim for breach of contract, the jury found 

that Duffy and Fuhr, but not Coulombe, violated the 

confidentiality provisions of their employment agreements. See 

note 4, supra. Where the parties waived findings of fact and 

conclusions of law on the G. L. c. 93A claim, we do not know 

whether the trial judge agreed with the jury that Coulombe did 

not violate his confidentiality provision or whether the trial 

judge found differently, that Coulombe violated his

confidentiality provision. See Klairmont v. Gainsboro 

Restaurant, Inc., 465 Mass. 165, 186 (2013) (judge deciding 

c. 93A claim may make findings contrary to what jury found when 

deciding parallel common law claims).
10

and those acting at the behest of BRG, executed most of this 

scheme during meetings that took place outside Massachusetts. 

The individual defendants first met with BRG in Washington, D.C. 

Additional in-person meetings occurred in New York City. 

Duffy's contract with BRG, which the jury could have found 

included a bonus that incentivized him to bring over FTI's

employees, was signed in New York City. The recruiter who led 

BRG's efforts, including the recruitment of other FTI employees,

was located predominately in Washington, D.C. While Duffy aided 

BRG's efforts by collecting FTI's confidential information and 

giving it to BRG, he "liv[ed] out of suitcases" and could have 

collected FTI's confidential information anywhere in his 

travels.

Moreover, the resulting harm was sustained nationwide by an 

out-of-State business. FTI employees were negotiating with FTI 

and BRG. FTI's own witnesses testified that employees left FTI

in "waves," starting in Boston and New York City but then 

extending across the country to Virginia, Charlotte, Atlanta, 

Dallas, Houston, the Midwest and the west coast. The clients 

who left also came from across the country. See Bushkin 

Assocs., Inc. v. Raytheon Co., 393 Mass. 622, 638-639 (1985) 

(where statements were made in Massachusetts but received and 

acted on in New York and any loss was incurred in New York,

"significant contacts . . . [were] approximately in balance," 
11

they showed "no primary involvement with Massachusetts").14 

Indeed, FTI lost only one Massachusetts client to BRG's 

recruitment efforts in 2016. 

In sum, "the center of gravity of the circumstances that 

g[a]ve rise to the claim" was not here. Kuwaiti Danish Computer 

Co., 438 Mass. at 473. Rather, this is a case where most of the 

wrongful conduct was "received and acted on" outside 

Massachusetts by an out-of-State business, Bushkin Assocs., 

Inc., 393 Mass. at 638, and where the injury was felt by another 

out-of-State business from employee and client defections across 

the country. Contrast Auto Shine Car Wash Sys., Inc. v. Nice 'N 

Clean Car Wash, Inc., 58 Mass. App. Ct. 685, 689 (2003) (G. L. 

c. 93A, § 11, claim occurred primarily and substantially in 

Commonwealth where deception and resulting harm both occurred in 

Massachusetts). In these circumstances, the fact that Duffy 

happened to be based out of the Boston office and that, 

consequently, a significant concentration of the billing 

professionals and clients who left were associated with FTI's 

Boston office, does not "suffice to bring this dispute within 

14 To the extent BRG's G. L. c. 93A liability was based on 

colluding with Fuhr, who was based out of the New York City 

office, in poaching New York employees and clients, FTI has not 

articulated any connection to Massachusetts.
12

the ambit of [G. L. c. 93A, § 11]." Skyhook Wireless, Inc. v. 

Google Inc., 86 Mass. App. Ct. 611, 623 (2014).

2. Constructive discharge. a. Background. We now 

summarize the background pertinent to whether the individual 

defendants were constructively discharged, which the defendants 

assert as a defense to the contract-based claims. Where the 

defendants' arguments require us to decide whether the trial 

judge erred in allowing a directed verdict against the 

defendants on part of this defense, see, e.g., Kolodziej v. 

Smith, 412 Mass. 215, 217 (1992), and whether, absent an 

erroneous jury instruction, the jury might have found that the 

individual defendants were constructively discharged, see, e.g., 

Abramian v. President & Fellows of Harvard College, 432 Mass. 

107, 118-119 (2000),15 we summarize the trial evidence in the 

light most favorable to the defendants.

Prior to their departures, the individual defendants worked 

for FTI pursuant to written employment agreements that were 

expressly governed by Maryland law and contained noncompetition,

15 In Abramian, because the erroneous instruction "stripped 

the jury of its fact-finding role," the question was whether 

jury could have found in favor of the nonprevailing party. 432 

Mass. at 118-119. As we discuss infra, the erroneous 

instruction here presents a similar issue.
13

nonsolicitation, and confidentiality provisions.16 Duffy's 

agreement, which was executed in 2006, stated that he would earn 

a minimum guaranteed salary of $1.5 million.17 Duffy's agreement

also stated that he was a senior managing director. However, 

Duffy was made the co-head of FTI's corporate finance and 

restructuring (CFR) group in 2011 and the global head of that 

group in 2014; he also served on FTI's executive committee. As 

with Duffy's agreement, Coulombe's and Fuhr's agreements 

guaranteed them certain minimum salaries and stated that they 

were senior managing directors. Both held leadership positions 

under Duffy.18 Coulombe testified that his work was 

"intertwined" with Duffy's, and Fuhr testified that he relied on 

Duffy "for developing new business."

16 The noncompetition and nonsolicitation provisions were 

limited to the "Restricted Period." The "Restricted Period" 

began "on the date of the execution of [the employment 

agreement] and end[ed] on the expiration of the period ending 

twelve (12) months from the termination date of Employee's 

employment." "Notwithstanding the foregoing, . . . the duration 

of the Restricted Period [was to] be extended by the amount of 

any and all periods that Employee violate[d] the [noncompetition 

and nonsolicitation provisions]." 

17 Duffy's salary was subsequently increased to $1.6 

million, but the minimum guaranteed salary stated in Duffy's 

employment agreement remained $1.5 million.

18 Coulombe was the leader of the retail practice in the CFR

group. Fuhr was the head of the office of the chief financial 

officer.
14

In 2014, FTI appointed a new chief executive officer, 

Steven Gunby, who "set about making changes." Gunby proposed to 

reduce Duffy's minimum guaranteed salary by fifty percent, from 

$1.5 million to $750,000, but maintained that Duffy would make 

up the difference through increases to his bonuses. Duffy took 

a different view of Gunby's proposal; he did not want his 

minimum guaranteed salary reduced, let alone by fifty percent, 

and he thought the bonus plan was "too much under [Gunby's] 

control and discretion." In or around January 2016, which 

roughly coincided with when Duffy began negotiating with BRG, he 

informed Gunby that he would not be signing the proposed

employment agreement. Gunby told Duffy not to attend the next 

executive committee meeting, made Duffy "acting" head of the CFR 

group, and told Duffy that FTI leadership would be informed that 

Duffy was transitioning out of his leadership roles in the CFR 

group and on the executive committee.19 Despite taking steps to 

transition Duffy out of his leadership roles, Gunby testified 

that he wanted Duffy to stay at FTI and that Duffy was "a huge 

money-maker."

Duffy's involuntary transition out of his leadership roles

occurred against the backdrop of other senior leaders being 

19 Duffy and Gunby testified to slightly different timelines 

of these events, but there is no dispute that Gunby was 

transitioning Duffy out of his leadership roles.
15

terminated. Coulombe and Fuhr testified that senior leaders 

were being "booted" or "pushed" out, and they thought Duffy was 

next. These were people that Coulombe and Fuhr respected and 

relied on to do their jobs. Coulombe was "quickly concluding

that there was probably no future at FTI for [him]." Fuhr 

questioned how he was going to build business given what was 

going on within FTI.

Then, in or around February 2016, Coulombe and Fuhr were 

also presented with new employment agreements. FTI presented 

testimony that the new employment agreements were rolled out on 

a voluntary basis to reward high-performing employees. Similar 

to Duffy, Coulombe and Fuhr took a different view of the new 

employment agreements. Coulombe and Fuhr testified that they 

were offered the new employment agreements on a nonnegotiable 

basis and that the agreements eliminated their minimum 

guaranteed salaries and contained other punitive terms. 

Coulombe and Fuhr did not sign the new employment agreements. 

Coulombe felt that he had no future at FTI without Duffy, and 

Fuhr "felt just beaten." Gunby testified that, as with Duffy,

he wanted Coulombe and Fuhr to stay at FTI.

b. Discussion. The defendants asserted constructive 

discharge as a defense to FTI's claims for breach of contract, 

tortious interference with contractual relations, and aiding and 
16

abetting breaches of fiduciary duties.20 Given the choice of law 

provision in the individual defendants' employment agreements, 

this issue is governed by Maryland law. We therefore turn to 

Maryland law on constructive discharge.

Maryland recognizes two theories of constructive discharge 

relevant to this case. First, Maryland recognizes that an 

employee is constructively discharged when the "employee 

contracts to fill a particular position" and suffers a "material 

change in duties or significant reduction in rank[,] . . . if 

unjustified" (citation omitted). Weisman v. Connors, 69 Md. 

App. 732, 743 (1987), rev'd on other grounds, 312 Md. 428 

20 These claims were tried on the basis that the individual

defendants violated the noncompetition, nonsolicitation, and 

confidentiality provisions of their employment agreements and 

that BRG tortiously interfered with those provisions and aided 

and abetted the individual defendants in violating them. As the 

trial judge ruled in a pretrial order, which FTI does not 

challenge on appeal, if the individual defendants were 

constructively discharged, their contractual obligations ended 

at that time. See B-Line Med., LLC v. Interactive Digital 

Solutions, Inc., 209 Md. App. 22, 60 (2012) (material breach 

relieves other party of performance); Weisman v. Connors, 69 Md. 

App. 732, 743 (1987), rev'd on other grounds, 312 Md. 428 (1988)

(constructive discharge is breach of contract). This leaves 

open the possibility that some of the conduct giving rise to the 

defendants' liability may have occurred before the individual 

defendants were constructively discharged, which may be explored 

on remand. Separately, regarding FTI's claim that the 

individual defendants violated the noncompetition and 

nonsolicitation provisions of their employment agreements, the 

trial judge instructed the jury, and there is no argument to the 

contrary, that the noncompetition and nonsolicitation provisions 

could not be enforced if the individual defendants were 

constructively discharged.
17

(1988). Second, Maryland recognizes that an employee is 

constructively discharged "when an employer deliberately causes 

or allows the employee's working conditions to become so 

intolerable that the employee is forced into an involuntary 

resignation" (quotation and citation omitted). Beye v. Bureau 

of Nat'l Affairs, 59 Md. App. 642, 651 (1984).

In determining whether someone's working conditions have 

resulted in a constructive discharge, Maryland applies a 

standard that has both objective and subjective elements. See

Beye, 59 Md. App. at 651-653. The objective portion of the 

standard requires a court to determine whether "a reasonable 

person in the employee's shoes would have felt compelled to 

resign" (citation omitted). Id. at 652. The subjective portion 

of the standard is not as straightforward and has been the 

source of some disagreement. As the court noted in Beye,

"some courts have suggested that a constructive discharge 

does not occur unless the employer's actions are both 

deliberate and taken with the intention of forcing a 

resignation. In most of the decisions, however, . . . such 

express intent has not been regarded as necessary. It 

suffices if the employer's actions were deliberate or, in 

cases of harassment by supervisors or fellow employees, if 

the employer was aware of the situation and permitted it to 

continue." (Citations omitted.)
18

Id. at 651-652. While the Beye court noted that "some courts" 

require proof of intent to force a resignation,21 the Beye court 

did not adopt that requirement and instead concluded that the 

question is "whether the employer has deliberately caused or 

allowed the employee's working conditions to become so 

intolerable that a reasonable person in the employee's place 

would have felt compelled to resign." Id. at 653.22

i. Directed verdict. The defendants argue that the trial 

judge erroneously granted a directed verdict on the defendants' 

theory that Duffy was demoted.23 The issue with respect to 

whether Duffy was demoted arises from the fact that his 

employment agreement stated that he was a senior managing 

director, not the head of the CFR group. FTI contends that it 

contracted with Duffy to fill the position of senior managing 

21 In Massachusetts, the standard is whether the "working 

conditions would have been so difficult or unpleasant that a 

reasonable person in the employee's shoes would have felt 

compelled to resign" (quotation and citation omitted). GTE 

Prods. Corp. v. Stewart, 421 Mass. 22, 34 (1995).

22 The amicus notes that requiring the employee to prove 

intent to force a resignation is problematic because in some 

situations, such as sexual harassment, the employer may want the 

worker to remain employed so that the harassment can continue. 

See, e.g., Hukkanen v. International Union of Operating Eng'rs, 

Hoisting & Portable Local No. 101, 3 F.3d 281, 284-285 (8th Cir. 

1993).

23 At trial, the defendants made this argument with respect 

to all the individual defendants. On appeal, they pursue the 

argument only with respect to Duffy.
19

director, that any title he held beyond that was akin to a 

rotational leadership position, and that he was not demoted when 

made "acting" head of the CFR group. The defendants contend

that Duffy's employment agreement was modified by the parties' 

conduct, that FTI contracted with Duffy to fill the position of 

head of the CFR group, and that Duffy suffered an unjustified, 

significant reduction in rank when demoted to "acting" head of 

that group. See Weisman, 69 Md. App. at 743. On this point, 

there was sufficient evidence to raise a jury question such that 

FTI's motion for a directed verdict should not have been 

allowed.

There was evidence that Duffy led the CFR group from 2011 

until 2016, first as co-head of the group and then as head of 

the group, and that FTI began to transition Duffy out of that

position not as part of a regular, rotational system but because

he would not agree to a drastic reduction in his guaranteed 

minimum salary. In the light most favorable to the defendants, 

Duffy's long tenure leading the CFR group and the circumstances 

in which FTI began to transition him out of the position 

supported an inference that the position was a contracted-for 

position, not a rotational leadership position, and that the 

parties, through their conduct, modified Duffy's employment 
20

agreement to fill the position. While the inference was not 

inescapable, it was permissible.24

ii. Jury instructions. The defendants also argue that the 

trial judge erred in instructing the jury, over the defendants' 

objection, that the defendants had to prove that "FTI set out to 

force [the individual defendants] to quit their jobs."25 As 

discussed, the Beye court did not adopt that requirement. In 

Maryland, the question is "whether the employer has deliberately 

caused or allowed the employee's working conditions to become so 

intolerable that a reasonable person in the employee's place 

would have felt compelled to resign." Beye, 59 Md. App. at 653. 

Accord Williams v. Maryland Dep't of Human Servs., 136 Md. App. 

153, 178 (2000). We conclude that the jury instruction was 

24 We are unpersuaded by FTI's additional argument that the 

evidence, as a matter of law, showed that Duffy's demotion was 

justified. There was evidence that Duffy had a minimum 

guaranteed salary and that FTI made him "acting" head of the CFR 

group only because he would not agree to a drastic reduction to 

his salary, which he had no obligation to do.

25 As noted, FTI's aiding and abetting claim was tried to 

the judge. Regardless, the erroneous jury instruction requires 

vacatur of so much of the judgment as holds BRG liable for 

aiding and abetting, because the erroneous jury instruction 

shows that the trial judge also instructed himself incorrectly 

as to the defense of constructive discharge. See Rabinowitz v. 

Schenkman, 103 Mass. App. Ct. 538, 542 (2023), citing 

Commonwealth v. Beaulieu, 3 Mass. App. Ct. 786, 787 (1975) (we 

presume that judges correctly instruct themselves as to law 

absent "contrary indication" in record).
21

erroneous.26 Moreover, the error was prejudicial for the 

following reasons.

There was evidence of upheaval within FTI and that senior 

leaders were being terminated or "pushed" out. The jury could 

have found that FTI sought to undermine Duffy by removing him 

from his leadership positions when he did not agree to a drastic 

reduction to his minimum guaranteed salary. The jury also could 

have found that (1) the upheaval had serious ramifications for

Coulombe and Fuhr, who relied on the senior leaders who were 

being terminated or demoted, and (2) at the same time, FTI was 

strong-arming Coulombe and Fuhr into signing new employment 

agreements that contained punitive terms. The jury could have 

concluded that, in these circumstances, "a reasonable person in 

the employee's place would have felt compelled to resign." 

Beye, 59 Md. App. at 653.27

26 FTI's reliance on Moniodis v. Cook, 64 Md. App. 1 (1985), 

is unavailing. In that case, and others cited by FTI, there was 

"ample evidence" of an intent to force a resignation, id. at 11,

so the court did not need to reach what would have happened had 

there been no such intent to force a resignation.

27 Accordingly, we are unpersuaded by FTI's argument that 

the evidence did not support a conclusion that the individual 

defendants' working conditions were "so intolerable." In large 

part, FTI relies on the fact that there was no egregious 

personal harassment, but that is not required under Maryland

law. See Weisman, 69 Md. App. at 743 (Maryland does not require 

"truly outrageous conduct on the part of the employer 

approximating that needed to constitute an abusive discharge"

[quotation and citation omitted]). FTI also relies on the fact 
22

The erroneous jury instruction, however, invited the jury 

to conclude that the individual defendants were not 

constructively discharged so long as FTI did not specifically 

intend to force their involuntary resignations. The jury may 

well have based their verdict on the erroneous instruction, as 

there was evidence from which the jury could have concluded that 

FTI wanted the individual defendants to remain at FTI, albeit in 

weakened positions, including working under revised employment 

agreements that were potentially significantly less lucrative. 

FTI itself presented testimony that it did not want the 

individual defendants to leave, as they all generated a 

significant amount of revenue for FTI. Where the jury may have 

based their verdict on the erroneous instruction, the error was 

prejudicial.28

that the individual defendants were all well paid employees. 

That may be true, but it was for the jury to decide whether, 

given the proposed reductions in their salaries (Duffy's 

guaranteed minimum salary was cut in half and the other 

individual defendants' minimum salaries were eliminated), the 

defendants' working conditions were not "so intolerable."

28 Given our conclusion, we need not reach an alternative 

argument raised by the defendants that (1) Maryland law 

prohibits restrictive covenants that are indefinite in duration 

and (2) the "Restricted Period" during which the noncompetition 

and nonsolicitation provisions were in effect, see note 16,

supra, was for an indefinite period of time. The defendants 

rely on the language that stating that the "Restricted Period" 

could be extended by "the amount of any and all periods that 

Employee violate[d] the [noncompetition and nonsolicitation 

provisions." While we need not reach the issue, we provide the 
23

3. Conclusion. The judgment on FTI's claim against BRG 

for violation of G. L. c. 93A is reversed, and judgment shall 

enter for BRG on that claim. In all other respects, the 

judgment is vacated, and the matter is remanded for further 

proceedings29 consistent with this opinion.30

So ordered.

following guidance should the issue arise again on remand. The 

defendants rely solely on Nationwide Mut. Ins. Co. v. Hart, 73 

Md. App. 406, 413 (1988), which concluded that a restrictive 

covenant was unreasonable as to duration because it had an 

indefinite start date. That is not the circumstance here. The 

"Restricted Period" had a definite start date beginning on the 

date each employment agreement was executed, continued for 

twelve months after each individual defendant was constructively 

discharged, and was extended for any period of noncompliance, 

which was within each individual defendant's control.

29 As noted, the jury found that Coulombe did not violate 

the confidentiality provision of his employment agreement. See 

note 4, supra. That issue, having been fairly settled by the 

jury's answer to a special verdict question, should not be 

retried. See, e.g., Burke v. Hodge, 211 Mass. 156, 164 (1912).

30 FTI's request for appellate attorney's fees is denied.